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ELCAllowedJudicial Review Application (Meru CMCC LDT No. 7 of 2011 adoption of Meru Central District Land Disputes Tribunal Case No. 27 of 2010)· [2018] KEELC 2556 (KLR)

Republic v Meru Central District Land Disputes Tribunal & 2 others Ex Parte Mworia Nkonge [2018] KEELC 2556 (KLR)

High Court of Kenya
28 June 2018
JKJ.G. Kemei
1,475 words in judgment
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The bottom line

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Kenya's High Court confirmed land tribunals cannot decide who owns land; any such award is void and was quashed, with costs awarded.

What this practically means

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Executive summary

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This was a judicial review application seeking an order of certiorari to quash the award of the Meru Central District Land Disputes Tribunal made on 8/2/2011 and adopted by the Chief Magistrate's Court on 4/3/2011 in CMCC LDT No. 7 of 2011. The suit land was LR No. ABOTHUGUCHI/IGANE/1837 measuring 3.3 acres, registered in the name of the ex-parte Applicant. The Tribunal had apportioned the land, awarding 2 acres to the Applicant, 0.84 acres to the 1st Interested Party (his father) jointly, and 0.50 acres to the 2nd Interested Party, a purchaser, and directed that the title be registered jointly to defeat the sale. The Applicant, the registered proprietor, contended the Tribunal lacked jurisdiction to compel transfer of his land. Only the 1st Interested Party opposed, asserting the Applicant had fraudulently transferred the whole land to himself contrary to a family apportionment. The court identified the sole issue as whether the Tribunal had jurisdiction over title and ownership of land. Relying on section 3(1) of the Land Disputes Tribunal Act, the court held the Tribunal had no power to determine ownership, acted in excess of jurisdiction, and its award was ultra vires and a nullity; adoption by the magistrate's court could not cure the defect. Citing Sir Ali Bin Salim and Macfoy, the court held a decision without jurisdiction is void and incurably bad. The Notice of Motion was allowed, certiorari issued quashing the award, with costs payable by the Respondent and interested parties in equal share.

Key legal issues

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01

Whether the Land Disputes Tribunal had jurisdiction to determine ownership/title to land

Holding

The Tribunal exceeded its jurisdiction by determining ownership of land, a matter reserved to the courts; its award was ultra vires and a nullity.

Reasoning

Section 3(1) of the Land Disputes Tribunal Act (now repealed) confined tribunals to disputes over division or boundaries of land, claims to occupy or work land, and trespass. The Tribunal in this case apportioned the suit land and directed that title be registered jointly and transferred, effectively determining ownership. That power was reserved for the High Court. Acting without jurisdiction rendered its decision, and its adoption, a nullity.

p. 3
02

Effect of a null decision on adoption by the magistrate's court

Holding

The adoption of a void tribunal award by the Chief Magistrate's Court could not cure the want of jurisdiction; the adopted decision was equally a nullity.

Reasoning

Relying on Sir Ali Bin Salim v Shariff Mohamed Shatry and Macfoy v United Africa Co Ltd, the court held that a judgment without jurisdiction is void, not voidable, may be declared void by any court in which it is presented, and cannot be saved by consent or waiver of the parties. Consequently the Chief Magistrate's adoption of the award on 4/3/2011 produced no legal effect.

p. 4

Legal principles established

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  • A court or tribunal can only exercise jurisdiction conferred by the Constitution or written law and cannot arrogate itself jurisdiction exceeding that conferred; a decision made without jurisdiction is a nullity.
  • A judgment rendered without jurisdiction over the subject matter is void, not merely voidable, and jurisdiction cannot be conferred by consent or waiver.
  • An act that is a nullity is void and incurably bad; there is no need for an order of court to set it aside, though it is sometimes convenient to have it declared void.

Court orders

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  1. 1.The Notice of Motion be and is hereby allowed
  2. 2.An order of certiorari issued quashing the award of Meru Central District Land Disputes Tribunal in Case No 27 of 2010
  3. 3.The costs of the application to be paid by the Respondent and the interested parties in equal share
Jurisdiction invoked
Judicial review jurisdiction of the High Court (order of certiorari); the judgment invokes the principle that jurisdiction flows from the Constitution or legislation

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, "Republic v Meru Central District Land Disputes Tribunal & 2 others Ex Parte Mworia Nkonge [2018] KEELC 2556 (KLR)", Case Analysis (2018). Judicial Review Application (Meru CMCC LDT No. 7 of 2011 adoption of Meru Central District Land Disputes Tribunal Case No. 27 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2556/eng@2018-06-28

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