Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of Motion dated 2nd June 2017 (suit re land parcel KABARE/NYANGATI/89)· [2018] KEELC 4361 (KLR)

Mwago Gatuwai Gitwaru & 4 others v Bernard Njuki Karie [2018] KEELC 4361 (KLR)

Environment and Land Court
23 February 2018
BOB.N. Olao
1,053 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court halted Tribunal proceedings over family land, confirming Tribunals cannot decide who owns registered land.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kerugoya (Olao J) determined the plaintiffs' Notice of Motion dated 2nd June 2017. The plaintiffs sought a stay of execution proceedings in LDT Case No. 83/85 of 2001 pending determination of their suit, in which they challenge the Tribunal's orders over land parcel KABARE/NYANGATI/89 as null and void for contravening the repealed Land Disputes Tribunal Act. The defendant opposed, asserting he is the registered proprietor, that the Tribunal had jurisdiction, and that he holds no land in trust for the plaintiffs; he was, however, not averse to inhibition orders but sought expeditious hearing given his advanced age. Prayer 4 (temporary injunction) was granted by consent on 25th September 2017. The court noted that Sections 13(5) and (6) of the Environment and Land Court Act had been deleted by Act No. 12 of 2012, and flagged a discrepancy in the LDT case number between the pleadings. Applying the settled position that Land Disputes Tribunals could not determine ownership of registered land, and that a party may impeach a tribunal's decision made in excess of jurisdiction, the court granted the stay of the LDT proceedings and confirmed the temporary injunction, but imposed a twelve-month time limit within which the suit must be heard, failing which the injunction lapses. As the parties are family, each was ordered to bear their own costs of the application.

Key legal issues

#
01

Jurisdiction of Land Disputes Tribunals over registered land

Holding

Tribunals under the repealed Act had no jurisdiction to determine ownership of registered land

Reasoning

The annexed Tribunal proceedings showed it determined a dispute over ownership of registered land, which fell outside Section 3(1) of the repealed Land Disputes Tribunal Act, following the Amunavi decision. The plaint properly challenges those proceedings as null and void.

p. 2
02

Whether stay of the execution proceedings should issue

Holding

Stay granted pending determination of the suit

Reasoning

Since the plaintiffs challenge the Tribunal's orders as null and void for want of jurisdiction, allowing execution to proceed to finality before this Court determines the suit would cause great injustice. The defendant was not averse to inhibition but sought expeditious hearing due to his advanced age.

p. 2

Legal principles established

#
  • A Land Disputes Tribunal exercising jurisdiction under Section 3(1) of the repealed Land Disputes Tribunal Act could not determine a dispute relating to ownership of registered land
  • A party may move the Environment and Land Court to impeach a decision of a subordinate Court or Tribunal arrived at in excess of its jurisdiction

Court orders

#
  1. 1.Stay of proceedings in LDT Case No. 83/85 of 2001 pending hearing and determination of this suit
  2. 2.Temporary injunction restraining the defendant from selling, leasing, disposing, alienating and/or charging land parcel No. KABARE/NYANGATI/89 pending determination of the suit
  3. 3.Parties to expedite compliance with pre-trial directions and have the suit heard and determined within twelve (12) months, failing which the temporary injunction shall lapse
  4. 4.Each party to meet their own costs of the application

Authorities

#

Legislation

  • Environment and Land Court ActSection 3(1) and (2); Section 13
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 40
  • Land Disputes Tribunal Act (repealed)Section 3(1)

Cases cited (2)

  • JOTHAM AMUNAVI VS THE CHAIRMAN SABATIA DIVISION LAND DISPUTES TRIBUNAL & ANOTHER
    Civil Appeal No. 256 of 2002 (Kisumu)
  • JOHANA BUTI VS WALTER OMARIRA & OTHERS
    Civil Appeal No. 182 of 2006 (Kisumu)
Jurisdiction invoked
Section 3(1) and (2) and Section 13 of the Environment and Land Court Act; Section 6 of the Civil Procedure Act; Order 40 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mwago Gatuwai Gitwaru & 4 others v Bernard Njuki Karie [2018] KEELC 4361 (KLR)", Case Analysis (2018). Notice of Motion dated 2nd June 2017 (suit re land parcel KABARE/NYANGATI/89). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4361/eng@2018-02-23

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