Fredrick Bulimu Musimba v Torokasi Ongenge Embologonye [2018] KEELC 4617 (KLR)
The bottom line
#The Environment and Land Court confirmed that Kenya's old Land Disputes Tribunals had no power to decide who owns registered land, and quashed decisions doing exactly that.
What this practically means
#Executive summary
#Key legal issues
#Competency of the appeal (whether filed out of time / fabricated notice)
The issue of competency is res judicata because Justice Chitembwe had already ruled on 23rd October 2013 that the appeal was properly filed and not out of time, and the ruling stands.
The respondent argued the appeal was filed out of time and that a notice dated 6th September 2007 was falsely generated. However, the court perused the file and found that an application to strike out the appeal on the same ground had been heard and dismissed by Justice Chitembwe in a ruling delivered on 23rd October 2013. Applying section 7 of the Civil Procedure Act and Njue Ngai v Ephantus Njiru Ngai, the court held the issue could not be relitigated before it.
Whether the ELC had jurisdiction to hear the appeal
The court had jurisdiction under Article 162(2)(b), Article 165(3)(a) and section 13 of the Environment and Land Court Act, exercising appellate jurisdiction over local tribunals in land matters.
The court held that section 13 of the ELC Act confers jurisdiction over disputes relating to title, tenure, boundaries and land administration, and that the court exercises appellate and supervisory jurisdiction over local tribunals under Article 165(6). Since this was an appeal against decisions of the Sabatia Tribunal and the Provincial Appeals Committee, the court was seized of jurisdiction.
Whether the Tribunal and Appeals Committee exceeded their jurisdiction by determining title to registered land
Both tribunals acted without jurisdiction because the dispute was essentially a claim to title, which falls outside section 3(1) of the Land Disputes Tribunal Act.
Section 3(1) of the repealed Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass. The Tribunal ordered revocation of a registered title and issuance of a new title, a matter of ownership, not boundaries or occupancy. Following M'Marete v Republic, the court found the tribunals went beyond their jurisdiction and violated the Land Disputes Tribunal Act and the Law of Succession Act.
Legal principles established
#- Land Disputes Tribunals had no jurisdiction to determine claims to title to registered land; their mandate was limited to boundary disputes, claims to occupy or work land, and trespass.
- A court cannot be moved on the basis of a repealed law.
- Succession proceedings have not been treated as proceedings for purposes of the principle of res judicata (as submitted by the respondent).
Court orders
#- 1.The appeal is allowed
- 2.The decision/verdict of the Sabatia Land Disputes Tribunal is quashed
- 3.The decision/verdict of the Western Provincial Land Disputes Appeals Committee is quashed
- 4.Costs to the appellant
- On appeal from
- Western Provincial Land Disputes Appeals Committee (upholding Sabatia Land Disputes Tribunal, Case No. SABATIA/WODANGA/12/97)
- Appeal Case No. 39/07
- Jurisdiction invoked
- Article 162(2)(b) and 165(3)(a) of the Constitution of Kenya 2010; section 13 of the Environment and Land Court Act, 2011; section 8(9) of the repealed Land Disputes Tribunal Act No. 18 of 1990
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Bulimu Musimba v Torokasi Ongenge Embologonye [2018] KEELC 4617 (KLR)", Case Analysis (2018). ELC Appeal No. 22 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4617/eng@2018-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.