Patrick Lokwanga & 4 others v Joseph Cheboi & 5 others [2018] KEELC 4104 (KLR)
The bottom line
#Kenya's High Court ruled that a Land Disputes Tribunal had no power to decide land ownership, so its award—and the court decree based on it—was a nullity.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Disputes Tribunal over land ownership
The Tribunal exceeded its statutory jurisdiction under section 3(1) of the Land Disputes Tribunal Act, 1990 by awarding ownership of the land; its decision was null and void.
Section 3(1) confines Tribunals to disputes over boundaries, claims to occupy or work land, and trespass. The Tribunal's verdict awarded the land to Kamoi Clan and portions to named individuals, which is a determination of ownership, a matter reserved for the High Court or Resident Magistrate's Court. The award was therefore ultra vires and a nullity.
Proper constitution of the Tribunal and institution of the claim
The Tribunal was not properly constituted and no formal claim was lodged as required by sections 3(2), (3) and 4 of the Act.
There was no formal claim presented or registered with a number as required by section 3(2) and (3), and the members of the panel were not gazetted as required under section 4. Without proof of compliance with the statutory requirements, the Tribunal had no authority to deliberate on the dispute.
Validity of the decree adopted by the Iten Resident Magistrate's Court
The decree adopted pursuant to the void award was itself a nullity and incapable of execution.
Section 7 of the Act requires a court to enter judgment in accordance with the Tribunal's decision, upon which a decree issues. Since the Tribunal's decision was void for lack of jurisdiction, the judgment and decree founded on it derived no legitimacy from adoption and could not be executed.
The defendants' counterclaim without a verifying affidavit
The counterclaim was struck from consideration for want of a verifying affidavit as required by Order 7 rule 5 of the Civil Procedure Rules, 2010.
A counterclaim is a pleading which must be verified by affidavit. The defence and counterclaim filed on 10/2/09 was unaccompanied by a verifying affidavit, rendering it incompetent, and the court declined to consider it as presented.
Legal principles established
#- A Land Disputes Tribunal has no jurisdiction to determine questions of ownership of land; an award in excess of that jurisdiction is null and void.
- Adoption of a void tribunal award as a court judgment under section 7 of the Land Disputes Tribunal Act does not cure the nullity.
- A defence and counterclaim must be supported by a verifying affidavit under Order 7 rule 5 of the Civil Procedure Rules, 2010; an unverified counterclaim cannot be considered.
Court orders
#- 1.A declaration that the Tribunal proceedings conducted on 25/4/02 were a nullity
- 2.A declaration that the award adopted by the Iten Resident Magistrate's Court in Land Disputes Tribunal case no. 1 of 2003 on 6/8/03 is a nullity
- 3.An order of injunction restraining the Defendants from trespassing on the Plaintiffs' parcel of land
- 4.A direction that the adjudication process be commenced to finalize the issue of legal ownership of the suit land
- 5.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the High Court under the repealed Land Disputes Tribunal Act, 1990 and the Civil Procedure Act (unlimited original jurisdiction in civil matters)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Lokwanga & 4 others v Joseph Cheboi & 5 others [2018] KEELC 4104 (KLR)", Case Analysis (2018). Not stated in the judgment (Plaint dated 30th April, 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4104/eng@2018-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.