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ELCDismissedKapsabet PMCC LDT No. 64 of 2007 (suit challenging Kapsabet LDT No. 64 of 2007)· [2018] KEELC 551 (KLR)

Daisy Jesondin Birgen v Attorney General & another [2018] KEELC 551 (KLR)

Environment and Land Court / High Court at Eldoret (per judgment, delivered by A. Ombwayo, Judge)
22 November 2018
AOA. Ombwayo
2,379 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 dismissed a landowner's challenge to a Land Disputes Tribunal award because she used the wrong legal route instead of the required appeal process.

What this practically means

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Executive summary

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The plaintiff and the 2nd defendant are administratrices of the estate of the late Meshack Kiptoo Birgen and joint registered proprietors in equal shares of parcel Nandi/Sarova/83. The plaintiff alleged that the deceased had apportioned portions to each widow and that this arrangement was approved by the probate court, but the 2nd defendant lodged a claim before the Land Disputes Tribunal (Kapsabet LDT No. 64 of 2007) seeking an equal four-way subdivision. A decree was issued on 8th May 2011, with the award dated 10th May 2011 adopted as an order of the Kapsabet Principal Magistrate's Court on 17th May 2011. The plaintiff sued the Attorney General and the 2nd defendant by plaint, seeking a declaration that the Tribunal's decision was illegal, null and void for want of jurisdiction over registered land, and an order restraining the District Surveyor from subdividing the land. The 2nd defendant defended and counterclaimed, seeking a declaration that the Tribunal's decision was legal and enforceable, alternatively an equal division of each portion of the land with registration, and an injunction. The Attorney General contended the plaint was the wrong procedural vehicle. The parties relied on pleadings and written submissions. The court agreed with the defendants that the correct avenue for challenging the decree was an appeal under section 8(1) of the Land Disputes Tribunal Act (Cap 303A, repealed) to the Provincial Appeals Committee within 30 days, or judicial review. Applying Paul Muraya Kaguri v Simon Mbaria Muchumu, the court held the suit was not premised on any provision of law, was improperly before the court, and dismissed it with costs on 22nd November 2018.

Key legal issues

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01

Proper avenue for challenging a Land Disputes Tribunal award adopted as a court decree

Holding

The plaintiff's plaint seeking a declaration of illegality is not a recognised avenue; the statutory appeal under section 8(1) of the Land Disputes Tribunal Act or judicial review was the correct route

Reasoning

The court held that once the Tribunal's award was adopted it became a decree of the Magistrate's Court, and an aggrieved party had 30 days to appeal to the Provincial Appeals Committee, with further recourse to the High Court by appeal or judicial review. The plaintiff filed none of these, instead lodging a declaration suit unknown in law, which the court found defective in substance.

p. 3
02

Whether the plaintiff could bypass the statutory dispute resolution mechanism

Holding

No; where a statute establishes a special dispute resolution mechanism, it must be followed

Reasoning

Relying on Paul Muraya Kaguri v Simon Mbaria Muchumu, the court applied the principle that a party who fails to use the established mechanism cannot be heard to say their rights were denied. The plaintiff did not appeal to the appeals committee within the prescribed time, so the suit was improperly before the court.

p. 3

Legal principles established

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  • Where a statute establishes a dispute resolution mechanism, that mechanism must be followed; a party who fails to follow it cannot claim their rights were denied
  • Once a Land Disputes Tribunal award is adopted by the Magistrate's Court it becomes a decree of the court, challengeable on appeal to the Provincial Appeals Committee and thereafter by appeal or judicial review in the High Court

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Land Dispute Tribunal ActSection 3(1)
  • Land Dispute Tribunal ActSection 6
  • Land Dispute Tribunal Act (Cap 303A, repealed)Section 8(1)
  • Registered Land Act Cap 300Section 159
  • Law Reforms Act Cap 26null

Cases cited (1)

  • PAUL MURAYA KAGURI -VS-SIMON MBARIA MUCHUMU
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court/Eldoret over the challenge to the Land Disputes Tribunal award adopted in Kapsabet PMCC LDT No. 64 of 2007

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, "Daisy Jesondin Birgen v Attorney General & another [2018] KEELC 551 (KLR)", Case Analysis (2018). Kapsabet PMCC LDT No. 64 of 2007 (suit challenging Kapsabet LDT No. 64 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/551/eng@2018-11-22

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