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ELCDismissedLand Disputes Tribunal Appeal (Eastern Province Land Disputes Appeals Committee Case Number 13 of 2005)· [2018] KEELC 2760 (KLR)

Patrick Njagi Njeru v Peter Njagi Njabaragu [2018] KEELC 2760 (KLR)

Environment and Land Court
28 June 2018
1,577 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a land appeal as pointless because the appellant waited until he lost before challenging the tribunal's jurisdiction.

What this practically means

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Executive summary

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The appellant appealed against the decision of the Eastern Province Land Disputes Appeals Committee in Case Number 13 of 2005, which had upheld the Meru Central District Land Disputes Tribunal's decision that each party should continue keeping his share of the land, with Abogeta/Upper Kithangari/920 remaining as it was. The appellant's sole ground was that the Tribunal and the Committee lacked jurisdiction because the suit land was registered under the Registered Land Act Cap 300 (now repealed), whose Section 160 vested disputes over registered land in the High Court or Resident Magistrate's Court. The appeal was disposed of by written submissions. The court first addressed whether an appeal was the proper recourse, holding that under Sections 8(8) and 8(9) of the Land Disputes Tribunals Act appeals on issues of fact and customary law were barred, but appeals on points of law lay to the High Court, a function now exercised by the Environment and Land Court; since the issue raised was jurisdiction, a point of law, the appeal was properly before the court. The court found that although the record of appeal did not itself show registration, it was not disputed that the land was registered as at 1987, before both decisions. Ultimately, however, the court dismissed the appeal with costs to the respondent, reasoning that the appeal was a mere academic exercise: whether allowed or dismissed, the parties would remain in exactly the same position as before the Tribunal proceedings, and the appellant, having voluntarily submitted to the Tribunal and raised jurisdiction for the first time on appeal, had acquiesced. Judgment delivered at Meru on 28 June 2018 by Mwangi Njoroge J.

Key legal issues

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01

Proper forum for challenging a Land Disputes Appeals Committee decision

Holding

An appeal lies to the High Court (now the Environment and Land Court) on a point of law only; issues of fact and customary law are barred. The jurisdictional issue raised is a point of law, so the appeal is properly before the court.

Reasoning

Section 8(8) barred appeals on issues of fact, and customary law issues were deemed issues of fact. Section 8(9) permitted appeal on a point of law within 60 days. The substantive issue in this appeal is jurisdiction of the Committee, which is neither fact nor customary law, so the appeal forum is proper, subject to the court's other findings.

p. 2
02

Whether the Tribunal and Appeals Committee had jurisdiction over registered land

Holding

The suit land was registered land as at the time of the Tribunal and Committee decisions, which under Section 159 of the Registered Land Act meant such disputes were for the High Court or Resident Magistrate's Court; the record however did not itself show registration.

Reasoning

The appellant's affidavit response dated 1/12/2008 showed the lands were registered in 1987, so the land was registered at the time of both decisions. The appellant argued registration divested the Tribunal of jurisdiction, but the record of appeal was poorly compiled and did not establish this on its face.

p. 2
03

Utility of the appeal

Holding

The appeal was dismissed as a mere academic exercise because either outcome would leave the parties in the same position as before the Tribunal proceedings, and the jurisdictional objection was raised for the first time on appeal.

Reasoning

Allowing the appeal would quash the decisions and leave the parties as before; dismissing it would leave the decisions in place with the same effect. Neither party gained or lost anything from the proceedings below. The appellant voluntarily participated in the Tribunal and never raised jurisdiction before the Appeals Committee, showing acquiescence.

p. 2

Legal principles established

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  • Appeals on issues of fact from Provincial Land Disputes Appeals Committees were expressly barred; only issues of law (other than customary law) could be appealed to the High Court with certification
  • An appeal from a Provincial Land Disputes Appeals Committee on a point of law is properly entertained by the Environment and Land Court following its establishment
  • A party who voluntarily submits a dispute to a tribunal and raises the tribunal's lack of jurisdiction only after an adverse decision may be met with acquiescence

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Registered Land Act Cap 300 (now repealed)Section 159
  • Land Disputes Tribunals Act (now repealed)Section 8(8)
  • Land Disputes Tribunals Act (now repealed)Section 8(9)
  • Land Disputes Tribunals Act (now repealed)Section 3(1)

Cases cited (2)

  • Boniface Waweru Mbiyu Vs Mary Njeri
    2015 eKLR
  • Owners of the Motor Vessel Lillian S. vs Caltex Oil K Ltd
    1989 KLR
On appeal from
Eastern Province Land Disputes Appeals Committee
13 of 2005
Jurisdiction invoked
Section 8(9) of the Land Disputes Tribunals Act - appeal to the High Court on a point of law, now a matter for the Environment and Land Court

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, "Patrick Njagi Njeru v Peter Njagi Njabaragu [2018] KEELC 2760 (KLR)", Case Analysis (2018). Land Disputes Tribunal Appeal (Eastern Province Land Disputes Appeals Committee Case Number 13 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2760/eng@2018-06-28

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