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ELCStruck Out· [2017] KEELC 1428 (KLR)

Agostino Njue Mugao v Lawrence Mutugi Kiriungi [2017] KEELC 1428 (KLR)

High Court (Environment and Land jurisdiction) at Chuka
19 October 2017
PNP. M. Njoroge
718 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The High Court struck out a land appeal because the Embu Appeals Committee never made a decision — you can only appeal an actual decision.

What this practically means

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Executive summary

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The court dealt with a matter presented ostensibly as an appeal from the Embu Provincial Appeals Committee. On perusal of the pleadings, the court found that the Committee never finalised the case and never made any decision. Section 8(9) of the Land Disputes Tribunals Act allows an appeal to the High Court on a point of law only from a decision of an Appeals Committee, certified as raising an issue of law. Since no decision existed, no proper appeal could be filed, and the court concluded it lacked jurisdiction. The court invoked the settled principle from The MV SS Lilian S that a court must determine jurisdiction the moment it becomes aware of the issue and must down tools once it finds it lacks jurisdiction, and the Supreme Court's holdings in Samuel Kamau v Kenya Commercial Bank and Republic v Karisa Chengo that jurisdiction flows only from the Constitution or statute and that proceedings founded on a void act are a nullity, quoting McFoy v United African Company. Accordingly, 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. Both parties were absent at delivery, and no costs order was made.

Key legal issues

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Whether an appeal lies to the High Court under the Land Disputes Tribunals Act where no decision has been rendered by the Provincial Appeals Committee

Holding

No appeal can be filed against a non-existent decision; the court lacks jurisdiction over the purported appeal.

Reasoning

Section 8(9) of the Land Disputes Tribunals Act permits appeals to the High Court only from decisions of Appeals Committees. On perusal of the pleadings, the Embu Provincial Appeals Committee never finalised the case and made no decision. Since appeals come to the court only against decisions of Appeals Committees, no proper appeal exists. Entertaining the matter would be putting something on nothing, which will collapse.

p. 1

Legal principles established

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  • Jurisdiction must be addressed the moment the court becomes aware of the issue, and 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.
  • Proceedings founded on a void act are a nullity.

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.A declaration that the matter has been disposed of by the court

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 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 (appeals to the High Court on a point of law against decisions of Appeals Committees)

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, "Agostino Njue Mugao v Lawrence Mutugi Kiriungi [2017] KEELC 1428 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1428/eng@2017-10-19

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