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ELCStruck Out· [2017] KEELC 1339 (KLR)

Douglas Kinegeni M’ribu v M’ndaka M’ithara [2017] KEELC 1339 (KLR)

High Court of Kenya
19 October 2017
718 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out an appeal because the Embu Provincial Appeals Committee never made a decision — no decision means no appeal.

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, apparently arising from land dispute proceedings. On perusing the pleadings, the court found that the Embu Provincial Appeals Committee had never finalized the case and therefore never made a decision. Under section 8(9) of the defunct Land Disputes Tribunals Act, an appeal lay to the High Court only on a point of law from a decision of an Appeals Committee, and only with certification that an issue of law was involved; questions of customary law were deemed questions of fact. Since no decision existed, no appeal could properly be filed, and the court held it lacked jurisdiction. Citing the Owners of the Motor Vessel 'Lillian S', the Supreme Court's decisions in Samuel Kamau Macharia v Kenya Commercial Bank and Republic v Karisa Chengo, and Lord Denning's dictum in Mcfoy v United Africa Co Ltd, the court reiterated that jurisdiction is conferred only by the Constitution or statute, that it must be addressed the moment its absence becomes apparent, and that proceedings founded on a void act are nullities that cannot stand - 'You cannot put something on nothing and expect it to stay there.' The court accordingly found 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 the High Court has jurisdiction over an appeal where no decision was made by the Provincial Appeals Committee

Holding

The court lacks jurisdiction; an appeal can only be filed against a decision of an Appeals Committee, and none existed here

Reasoning

Section 8(9) of the Land Disputes Tribunals Act permits appeals to the High Court on points of law from decisions of Appeals Committees, certified as involving an issue of law. The Embu Provincial Appeals Committee never finalized the case, so there was no decision to appeal from. Filing an appeal without a decision is an attempt to put something on nothing, which must collapse. The court therefore downs tools.

p. 1
02

The duty of a court to resolve jurisdiction at the earliest opportunity

Holding

Jurisdiction must be tackled as soon as the court becomes aware of the issue, on the material before it

Reasoning

Relying on Owners of the Motor Vessel 'Lillian S' and the Supreme Court decisions in Samuel Kamau Macharia v KCB and Republic v Karisa Chengo, the court held that jurisdiction goes to the heart of the matter, is not a question of procedural technicality, and must be decided immediately once its absence is apparent, since without it the court cannot entertain any proceedings.

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 cannot take any further step
  • A court's jurisdiction is conferred only by the Constitution or legislation and cannot be self-arrogated
  • Proceedings founded on a void act are nullities and cannot stand
  • An appeal lies to the High Court only against a decision of an Appeals Committee; without a decision there is no competent appeal

Court orders

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  1. 1.A finding that there is no appeal properly before the court for want of jurisdiction
  2. 2.That the file be removed from the list of appeals pending in the court
  3. 3.Declaration that the matter has been disposed of by the court

Authorities

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Legislation

  • Land Disputes Tribunals Act (repealed)Section 8(8)
  • Land Disputes Tribunals Act (repealed)Section 8(9)
  • Land Disputes Tribunals Act (repealed)Section 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 United African Company Limited (UK)
    [1962] AC 152
On appeal from
Embu Provincial Appeals Committee
Jurisdiction invoked
Section 8(9) of the Land Disputes Tribunals Act (repealed) - appeal to the High Court on a point of law from a decision of a Provincial 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, "Douglas Kinegeni M’ribu v M’ndaka M’ithara [2017] KEELC 1339 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1339/eng@2017-10-19

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