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ELCStruck OutNot stated in the judgment· [2017] KEELC 1358 (KLR)

Rose Kambura Muthitha v Joses Miriti Mbugua [2017] KEELC 1358 (KLR)

High Court of Kenya
24 October 2017
PNP. M. Njoroge
717 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 tribunal below never made a decision — confirming no decision means no appeal and no jurisdiction.

What this practically means

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Executive summary

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This was a matter lodged in the High Court at Chuka ostensibly as an appeal from the Embu Provincial Appeals Committee under the (now 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 appeals to the High Court only against decisions of Appeals Committees, on a point of law, within sixty days and subject to certification that an issue of law is involved. The court held that where no decision has been made, no appeal can be properly filed, and it therefore lacks jurisdiction. Relying on the celebrated decision in The MV SS Lilian S, the court reiterated that jurisdiction is everything and that a court must down tools the moment it finds it lacks jurisdiction. The court also relied on the Supreme Court's decision in Samuel Kamau & Another v Kenya Commercial Bank, that jurisdiction flows from the Constitution or legislation and cannot be arrogated by a court, and on the Karisa Chengo decision quoting Mcfoy v United African Company, that proceedings founded on a void act are nullities - you cannot put something on nothing and expect it to stay there. The court declared that there was no appeal properly before it, directed that the file be removed from the list of pending appeals, and declared the matter disposed of. The parties were absent at delivery of the judgment on 24th October 2017.

Key legal issues

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01

Whether the High Court has jurisdiction over an appeal where the Appeals Committee made no decision

Holding

The court lacks jurisdiction; no appeal can be properly filed where no decision had been made by the Appeals Committee

Reasoning

Section 8(9) of the Land Disputes Tribunals Act permits appeals to the High Court only from decisions of Appeals Committees. Since the Embu Provincial Appeals Committee never finalized the case, there is no decision to appeal against. Filing such an appeal is putting something on nothing, and the court must down tools once it finds it lacks jurisdiction.

p. 1

Legal principles established

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  • A court must address the question of jurisdiction the moment it becomes aware of it and down tools if it lacks jurisdiction
  • A court's jurisdiction is derived solely from the Constitution or legislation and cannot be arrogated by the court itself

Court orders

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  1. 1.It is declared that this matter has been disposed of by this court
  2. 2.The file should be removed from the list of appeals pending in this court
  3. 3.It is so ordered

Authorities

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Legislation

  • Land Disputes Tribunals ActSection 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 vs Karisa Chengo and two others
    Petition No. 5 of 2015
  • Benjamin Leonard Mcfoy 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 (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, "Rose Kambura Muthitha v Joses Miriti Mbugua [2017] KEELC 1358 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1358/eng@2017-10-24

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