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ELCPartially AllowedKerugoya ELRC/High Court suit (number not stated in judgment)· [2018] KEELC 4424 (KLR)

Eunice Muthoni Gatugi v Lusalia Wamweru & others [2018] KEELC 4424 (KLR)

Environment and Land Court (High Court at Kerugoya)
2 February 2018
5,593 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's High Court cancelled a land tribunal's ruling, confirming that such tribunals cannot cancel registered land titles and landowners must be heard first.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel No. KABARE/NYANGATI/4148 since January 2008, sued to impeach an award of the Mwea Land Disputes Tribunal (Arbitration Case No. 13 of 2008) which cancelled her title, and its adoption as a judgment of the Wanguru Court. She was never summoned before the Tribunal or the adopting court despite the Tribunal knowing the land had been sold to her. She sought declarations that the reference, award and adopting order were irregular, illegal, null and void, their setting aside, removal of a restriction lodged on her title, and costs. The 2nd to 11th defendants, the deceased owner's family, counter-claimed that the 1st defendant (from whom the plaintiff bought the land) had fraudulently obtained the land from the deceased, and sought that it revert to his Estate. The court first rejected the defendants' submission that the plaintiff was confined to an appeal, distinguishing Alice Mweru Ngai and Florence Nyaboke Machani and applying Johana Nyokwoyo Buti. On the fraud counter-claim, applying R.G Patel v Lalji Makanji, none of the six particulars of fraud were proved; the deceased was found to have voluntarily gifted the land to the 1st defendant, so good title passed to the plaintiff. On jurisdiction, following Jotham Amunavi and Joseph Lelei, the Tribunal had no power under Section 3 of the repealed Land Disputes Tribunals Act to cancel title to registered land; its award and the adopting order were nullities. The plaintiff was also condemned unheard, violating Articles 40, 47(1) and 50(1) and natural justice. Judgment was entered for the plaintiff on all her prayers; the counter-claim was dismissed. As the parties are family, each party was ordered to bear their own costs.

Key legal issues

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01

Whether the plaintiff could impeach the Tribunal award and its adoption by the Wanguru Court by way of a fresh declaratory suit rather than an appeal

Holding

Yes. The suit was proper because the plaintiff challenged the validity of the award for want of jurisdiction and was out of time to appeal or seek judicial review; the authorities relied on by the defendants were distinguishable.

Reasoning

In the Alice Mweru Ngai case the plaintiff had alternative statutory remedies before the Energy Regulatory Commission; in Florence Nyaboke Machani there was a specific finding that the judgment was valid. Here the propriety of the Tribunal's award was being questioned for want of jurisdiction, and the plaintiff's time to appeal or file judicial review had lapsed. The Court of Appeal in Johana Nyokwoyo Buti permits impeaching a judgment merged from a Tribunal decision in fresh proceedings.

p. 4
02

Whether the 1st defendant fraudulently obtained title from the deceased, defeating the title passed to the plaintiff

Holding

No. None of the six particulars of fraud, misrepresentation and illegality pleaded against the 1st defendant were proved; the deceased voluntarily gifted the land to the 1st defendant during his lifetime and good title passed to the plaintiff.

Reasoning

The 2nd to 11th defendants bore the burden under Sections 107-109 of the Evidence Act. The name discrepancy was a typing error; no forensic document examiner was called to disprove the thumb print; the Land Control Board consent was produced; and the defendants' own evidence was contradictory, with the 9th defendant confirming the deceased was in good health on 14.6.2006 and accompanied the 1st defendant.

p. 6
03

Whether the Mwea Land Disputes Tribunal acted within its jurisdiction in cancelling the plaintiff's title

Holding

No. The Tribunal had no jurisdiction under Section 3 of the repealed Land Disputes Tribunals Act to cancel title to registered land, and it condemned the plaintiff unheard; its award and the adopting judgment were nullities.

Reasoning

The Tribunal knew the land had been sold to the plaintiff yet never summoned her before cancelling her registered title. This violated her constitutional right to property under Article 40, her right to fair administrative action under Article 47(1) and fair hearing under Article 50(1), and the rules of natural justice. An award in excess of jurisdiction is a nullity which must be set aside.

p. 7

Legal principles established

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  • A Land Disputes Tribunal established under the repealed Land Disputes Tribunals Act has no jurisdiction to order cancellation of title to registered land; any such award is a nullity
  • Where a tribunal exercises a jurisdiction it does not possess, its proceedings and decisions, and all that flow from them, are null and void
  • A decision arrived at in violation of the rules of natural justice is ultra vires, null and void
  • A complete judgment may be impeached in fresh proceedings on the ground of fraud or want of jurisdiction where no appeal or judicial review avenue is available
  • Allegations of fraud must be strictly proved to a standard higher than a mere balance of probabilities
  • A title obtained through fraud, misrepresentation, illegality, un-procedurally or corruptly may be challenged and cancelled under Section 26(1) of the Land Registration Act, 2012

Court orders

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  1. 1.A declaration that the reference before the Mwea Land Disputes Tribunal between the 2nd to 11th defendants against the 1st defendant and the subsequent award and order of Wanguru Land Court adopting the award of the Tribunal as a judgment of the Court directing the cancellation of title to land parcel No. KABARE/NYANGATI/4148 in Arbitration Case No. 13 of 2008 is irregular, illegal, null and void.
  2. 2.An order setting aside the award of Mwea Land Disputes Tribunal and the subsequent order of Wanguru Land Court adopting the award as a judgment of the Court in Wanguru Arbitration Case No. 13 of 2008.
  3. 3.An order that the restriction lodged against the title to land parcel No. KABARE/NYANGATI/4148 be removed.
  4. 4.The 2nd to 11th defendants' counter-claim is dismissed.
  5. 5.Each party meets their own costs.

Authorities

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Legislation

  • Land Disputes Tribunals Act (repealed)Section 3
  • Land Registration Act, 2012Section 26(1)
  • Registered Land Act (repealed)
  • Evidence ActSections 107 to 109
  • Energy ActSection 48(2)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (10)

  • Alice Mweru Ngai vs K.P & L.C Ltd
    2015 e K.L.R
  • Florence Nyaboke Machani vs Mogere Amosi Ombui and Two Others
    C.A Civil Appeal No. 184 of 2011 (Kisumu)
  • Johana Nyokwoyo Buti vs Walter Rasugu Omariba
    C.A Civil Appeal No. 182 of 2006 (2011 e K.L.R)
  • R.G Patel vs Lalji Makanji
    1957 E.A 314
  • Arthi Highway Developers Ltd vs West End Butchery Ltd and Others
    C.A Civil Appeal No. 246 of 2013 (2015 e K.L.R)
  • Jotham Amunavi vs The Chairman Sabatia Land Disputes Tribunal & Another
    C.A Civil Appeal No. 252 of 2002 (Kisumu)
  • Joseph Malakwen Lelei & Another vs Rift Valley Land Disputes Appeals Committee & Others
    C.A Civil Appeal No. 82 of 2006 (Eldoret) 2014 e K.L.R
  • Macfoy vs United Africa Co. Ltd
    1961 3 All ER 1169
  • Janesco vs Beard
    1930 A.C. 293
  • Kuwait Airways Corporation vs Iraqi Airways & Another (No. 2)
    (2011) 1 WLR 429
Jurisdiction invoked
Original jurisdiction to declare a nullity an award of the Mwea Land Disputes Tribunal adopted as judgment by Wanguru Court, under the Constitution (Articles 40, 47(1), 50(1)) and relevant statute (Land Registration Act, Land Disputes Tribunals Act (repealed))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eunice Muthoni Gatugi v Lusalia Wamweru & others [2018] KEELC 4424 (KLR)", Case Analysis (2018). Kerugoya ELRC/High Court suit (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4424/eng@2018-02-02

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