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ELCStruck Out· [2017] KEELC 1331 (KLR)

Elizabeth Mungaia Kairiba v Nyaga Makembo [2017] KEELC 1331 (KLR)

High Court of Kenya
24 October 2017
PNP.M. Njoroge
717 words in judgment
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The bottom line

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The High Court struck out an appeal filed before the Embu Provincial Appeals Committee had actually made any decision, ruling it had no jurisdiction.

What this practically means

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Executive summary

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This was a matter filed in the High Court at Chuka, ostensibly as an appeal, ostensibly against a decision of the Embu Provincial Appeals Committee under the defunct Land Disputes Tribunals Act. On perusal of the pleadings, the court found it pellucid that the Embu Provincial Appeals Committee had never finalised the case and therefore never made a decision. Section 8(9) of the Act permits an appeal to the High Court from the decision of an Appeals Committee on a point of law, certified as such, within sixty days; section 8(8) makes the Committee's decision final on issues of fact. The court held that appeals lie only against decisions of Appeals Committees, and where no decision had been made, no appeal could be properly filed; the court therefore lacked jurisdiction. Relying on The MV SS Lilian S, the court reiterated that jurisdiction must be tackled the moment its absence becomes apparent, that jurisdiction is everything, and that a court downs tools upon concluding it lacks jurisdiction. The court also invoked the Supreme Court's decisions in Samuel Kamau & Another v Kenya Commercial Bank and Republic v Karisa Chengo, and, through the latter, Lord Denning's dictum in Mcfoy v United African Company, to the effect that proceedings founded on a void act are nullities - entertaining the matter would be putting something on nothing. The court declared there was no appeal properly before it, ordered the file removed from the list of pending appeals, and declared the matter disposed of. No costs order was made; both parties were absent at delivery.

Key legal issues

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01

Whether an appeal lies to the High Court where the Appeals Committee made no decision

Holding

No. Appeals lie only against decisions of Appeals Committees; where the Embu Provincial Appeals Committee never finalised the case, there is no decision to appeal from and the court lacks jurisdiction.

Reasoning

Section 8(9) of the Land Disputes Tribunals Act permits an appeal to the High Court from the decision of an Appeals Committee on a point of law, certified as raising an issue of law. Since appeals come to the High Court only against decisions of Appeals Committees, the absence of any decision means no appeal can be properly filed. Entertaining such a matter would be putting something on nothing, which produces nothing.

p. 1
02

The obligation of a court seized of a matter lacking jurisdiction

Holding

The court must determine the jurisdictional question immediately and cease proceedings.

Reasoning

Relying on The MV SS Lilian S, the court held that a question of jurisdiction ought to be raised at the earliest opportunity and decided right away on the material before it. Without jurisdiction a court has no power to take one more step, and must down tools the moment it forms the opinion that it lacks jurisdiction.

p. 1

Legal principles established

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  • Jurisdiction must be addressed the moment the court becomes aware of its absence; a court without jurisdiction must down tools immediately.
  • A court may only exercise jurisdiction conferred by the Constitution or written law and cannot arrogate to itself greater jurisdiction.

Court orders

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  1. 1.A declaration that there is no appeal properly before the court
  2. 2.That the file be removed from the list of appeals pending in the court
  3. 3.That it is declared the matter has been disposed of by the court

Authorities

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Legislation

  • Land Disputes Tribunals ActSection 8(8)
  • Land Disputes Tribunals ActSection 8(9)
  • Land Disputes Tribunals ActSection 8(10)

Cases cited (3)

  • Samuel Kamau & Another versus Kenya Commercial Bank and Two Others
    Sup. Ct. Civil Application No. 2 of 2011
  • Republic versus Karisa Chengo and two others
    Petition No. 5 of 2015
  • Benjamin Leonard Mcfoy versus United African Company Limited
    [1962] AC 152
On appeal from
Embu Provincial Appeals Committee
Jurisdiction invoked
Section 8(9) of the Land Disputes Tribunals Act (appeal to the High Court on a point of law from a decision of the Appeals Committee)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elizabeth Mungaia Kairiba v Nyaga Makembo [2017] KEELC 1331 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1331/eng@2017-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.