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ELCDismissedELC Appeal Case No. 7 of 2017 (Formerly No. 6 of 2012 (Embu))· [2018] KEELC 2906 (KLR)

Wario Jillo v Yussuf Ali Salah [2018] KEELC 2906 (KLR)

Environment and Land Court
21 June 2018
1,663 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a land dispute appeal because the local tribunal had no power to decide who owned the land.

What this practically means

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Executive summary

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This first-instance appeal in the Environment and Land Court at Garissa arose from a ruling by Hon. D. W Mburu, SRM, delivered on 02/03/2012 in CMCC No. 1 of 2012 (Garissa). The respondent, Yussuf Ali Salah, had successfully objected by Notice of Motion under Order 51 Rule 1 CPR and Section 3A CPA to the adoption of an award filed on 30th November 2011 by the Madogo Lands Disputes Tribunal, contending the award was a nullity and a forgery. The appellant, Wario Jillo, appealed on five grounds, principally that the magistrate erred in declaring the award of 8th November 2011 a nullity and in ignoring the transitional provisions of Section 30 of the Environment and Land Court Act No. 19 of 2011. Neither party cited case law. The court held that the magistrate erred in finding the Land Disputes Tribunals Act No. 18 of 1990 inoperational upon enactment of the ELC Act, since Section 30 preserved pending proceedings before courts and local tribunals. However, on re-evaluating the Tribunal proceedings as required on a first appeal, the court found that the Tribunal's determination that Sankuri farm belonged to Wario Jillo amounted to a determination of land ownership, which was beyond the jurisdiction conferred by Section 3 of the repealed Act. The Tribunal's decision was therefore ultra vires and could not stand. The appeal was dismissed with no order as to costs. Judgment was delivered on 21st June 2018 by Hon. Justice E. C. Cherono.

Key legal issues

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01

Whether the Land Disputes Tribunals Act was rendered inoperational by the Environment and Land Court Act No. 19 of 2011

Holding

The learned magistrate erred in so holding; Section 30 of the ELC Act preserved pending proceedings before courts and local tribunals until the ELC came into operation

Reasoning

The court found that the transitional provision in Section 30 of the Environment and Land Court Act No. 19 of 2011 expressly continued proceedings pending before courts and local tribunals of competent jurisdiction until the ELC came into operation. The magistrate should have consulted these transitional provisions, which resolved the question whether the repealed Act remained operative for pending matters.

p. 2
02

Whether the Tribunal's award determining ownership of Sankuri farm was valid

Holding

The award was ultra vires because the Tribunal determined land ownership, a matter outside Section 3 of the Land Disputes Tribunals Act

Reasoning

Upon re-evaluating the Tribunal proceedings, the court found the dispute and the award revolved around ownership of land. Section 3 of the repealed Act confined Tribunals to division or determination of boundaries, claims to occupy or work land, and trespass. A determination of ownership exceeded those powers and cannot stand.

p. 3

Legal principles established

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  • Under Section 7 of the Land Disputes Tribunals Act, the magistrate's court shall enter judgment in accordance with a Tribunal's decision filed before it, and the Civil Procedure Act applies only at the time of enforcement of the decree
  • Section 30 of the Environment and Land Court Act preserved pending proceedings before courts and local tribunals until the Environment and Land Court came into operation
  • A Land Disputes Tribunal has jurisdiction only over the civil disputes enumerated in Section 3 of the Land Disputes Tribunals Act, and a determination of land ownership is beyond its powers
  • On a first appeal the court must review and re-evaluate the evidence afresh and arrive at its own independent decision

Court orders

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  1. 1.The appeal is dismissed with no order as to costs

Authorities

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Legislation

  • Land Disputes Tribunals ActSections 3(1), 7(1), 7(2)
  • Environment and Land Court ActSection 30
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51 Rule 1
On appeal from
Magistrate's Court at Garissa
CMCC No. 1 of 2012
Jurisdiction invoked
First appeal from the subordinate court under the Environment and Land Court Act No. 19 of 2011

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, "Wario Jillo v Yussuf Ali Salah [2018] KEELC 2906 (KLR)", Case Analysis (2018). ELC Appeal Case No. 7 of 2017 (Formerly No. 6 of 2012 (Embu)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2906/eng@2018-06-21

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