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ELCOtherNot stated in the judgment· [2017] KEELC 1352 (KLR)

Josphat Njagi M’Mukiira v Benson Mbae Riunga [2017] KEELC 1352 (KLR)

High Court of Kenya
19 October 2017
PNP.M. Njoroge
719 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court at Chuka struck out an 'appeal' filed against a decision that was never made, confirming courts cannot hear cases lacking jurisdiction.

What this practically means

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Executive summary

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This was a matter brought to the High Court at Chuka ostensibly as an appeal, apparently arising from land dispute proceedings under the defunct Land Disputes Tribunals Act. On perusal of the pleadings, the court found that the Embu Provincial Appeals Committee never finalized the case, meaning no decision existed from which an appeal could lie. Section 8(9) of the Act permits appeal to the High Court on a point of law from a decision of an Appeals Committee, certified as raising an issue of law. The court held that since no decision had been made, no proper appeal was before it and the court lacked jurisdiction. Relying on the dictum in The MV SS Lilian S that jurisdiction is everything and a court must down tools the moment it finds it lacks jurisdiction, and on the Supreme Court's decisions in Samuel Kamau v Kenya Commercial Bank and Karisa Chengo, together with Lord Denning's dictum in Mcfoy v United Africa Company that proceedings founded on a void act are incurably bad, the court declared that there was no appeal properly before it. 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 of the judgment on 19th October 2017.

Key legal issues

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01

Whether the High Court has jurisdiction over an appeal against a non-existent decision of a Provincial Appeals Committee

Holding

The court lacks jurisdiction; appeals lie only against decisions of Appeals Committees, and no decision was made here

Reasoning

Section 8 of the Land Disputes Tribunals Act permits appeals to the High Court only from decisions of Appeals Committees on points of law, certified as involving an issue of law. Since the Embu Provincial Appeals Committee never finalized the matter, there was no decision capable of being appealed. Entertaining the matter would be founding proceedings on nothing, which is a nullity. The court therefore downed tools.

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 in proceedings

Court orders

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

Authorities

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Legislation

  • Land Disputes Tribunals Act (defunct)Section 8(8), 8(9), 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)

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, "Josphat Njagi M’Mukiira v Benson Mbae Riunga [2017] KEELC 1352 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1352/eng@2017-10-19

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