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ELCAllowedELC Appeal No. 3 of 2014· [2018] KEELC 2699 (KLR)

Maurice Lubembe Shitiavayi v Maurice Achesa Andole [2018] KEELC 2699 (KLR)

Environment and Land Court
28 June 2018
NMN. A. Matheka
1,575 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed a Land Disputes Tribunal award that tried to divide registered land, confirming such tribunals never had power over ownership claims.

What this practically means

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Executive summary

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The appellant appealed against a ruling of 8th July 2014 by C. Kendagor, Ag. SRM, in Kakamega CM Misc. Award No. 7 of 2011, by which the magistrate varied an earlier stay and allowed execution to proceed on an award of the Ileho Division Land Disputes Tribunal. The tribunal had ordered the sub-division of the suit land into five equal portions, effectively cancelling the appellant's title. The appellant, who had lodged an appeal before the Western Provincial Appeals Committee that could not be heard after the repeal of the Land Disputes Tribunal Act, contended that the tribunal exceeded its jurisdiction, that the award was null and void ab initio, and that allowing execution condemned him unheard. The respondent maintained that no appeal was pending in any court and urged dismissal, arguing on the merits that the equal sub-division among five daughters of the deceased landowner was equitable. The court framed the preliminary issue as the tribunal's jurisdiction. Section 3(1) of the repealed Land Disputes Tribunal Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass; a claim to ownership of registered land was outside that mandate. Following M'Marete v Republic and applying Masagu Ole Naumo, the court held that the tribunal acted in excess of jurisdiction. Allowing the appeal, the court quashed the tribunal's decision and set aside the lower court's ruling of 8th July 2014, with no orders as to costs.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over title to registered land

Holding

The tribunal acted without jurisdiction because the dispute was a claim to ownership, which falls outside section 3 of the Land Disputes Tribunal Act

Reasoning

Section 3 of the repealed Act confined tribunals to civil disputes over division of or boundaries to land, claims to occupy or work land, and trespass. The Ileho Tribunal ordered sub-division of the suit land that would have cancelled the appellant's title, thereby determining ownership. Relying on M'Marete v Republic, the court held the tribunal meandered beyond its boundaries and acted in excess of jurisdiction, rendering the proceedings and decision null.

p. 2
02

Consequence of the tribunal's lack of jurisdiction on the adoption and execution of the award

Holding

Since the award was null and void ab initio, the magistrate's adoption of it and permission for execution were erroneous; the ruling of 8th July 2014 was set aside and the tribunal's verdict quashed

Reasoning

The appellant had appealed to the Western Provincial Appeals Committee, but the Land Disputes Tribunal Act was repealed before the appeal could be heard. Despite the repeal and the pendency of the appeal, the magistrate adopted the award and allowed execution. Having found the underlying award jurisdictionally void, the court saw no need to determine the remaining grounds of appeal.

p. 2

Legal principles established

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  • Land Disputes Tribunals under section 3 of the repealed Land Disputes Tribunal Act had no jurisdiction to determine claims to ownership or title to registered land

Court orders

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  1. 1.Appeal allowed
  2. 2.Decision/verdict of the Ileho Land Disputes Tribunal quashed
  3. 3.Ruling of the lower court made on 8th July 2014 set aside
  4. 4.No orders as to costs

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 3(1)
  • Registered Land Actnull

Cases cited (4)

  • Eunice Muthoni Gatugi Vs Lusalia Wamweru and Others
    (2018) eKLR
  • Alice Mweru Ngai Vs K.P &L.C LTD
    (2005) eKLR
  • M'Marete v Republic & 3 others
    Civil Appeal 259 of 2000 [2004] eKLR
  • Masagu Ole Naumo v Principal Magistrate Kajiado Law Courts & another
    JR 370 of 2013 [2014] eKLR
On appeal from
Chief Magistrate's Court at Kakamega
Kakamega CM Misc. Award No. 7 of 2011
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over the ruling and orders of the lower court (no specific constitutional or statutory provision cited in the judgment)

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, "Maurice Lubembe Shitiavayi v Maurice Achesa Andole [2018] KEELC 2699 (KLR)", Case Analysis (2018). ELC Appeal No. 3 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2699/eng@2018-06-28

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