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ELCAllowedKitale ELC No. 3 of 2017 (being an appeal against the award in Kitale CM Land Case No. 9 of 2011 arising from Kwanza Land Disputes Tribunal Case No. 2 of 2010)· [2019] KEELC 358 (KLR)

Christopher Wafula Mutoro v Richard Lordia Lokere [2019] KEELC 358 (KLR)

Environment and Land Court
4 December 2019
2,543 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 scrapped a land tribunal's award because the tribunal had no legal power to order transfers of registered land — even though everyone agreed at the hearing.

What this practically means

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Executive summary

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The appellant appealed to the Environment and Land Court at Kitale against the award of the Kwanza Land Disputes Tribunal in Case No. 2 of 2010, which had been adopted as the judgment of the Kitale Chief Magistrate's Court in Land Case No. 9 of 2011. The respondent, acting for himself and other purchasers, had complained before the tribunal that although the appellant, the registered proprietor of title Kwanza/Kwanza Block 3/Luhya/52 (17.05 Ha), had sold them portions of the land, he refused to transfer the portions or take them to the Land Control Board. The tribunal ordered the parties to proceed through the Land Control Board and the District Surveyor so that each buyer could receive individual title deeds. The route by which the appeal reached the ELC followed a ruling by Obaga J, a refused review, and a Court of Appeal order of 5/10/2017 in Civil Appeal No. 71 of 2016 directing that Land Disputes Appeal Cause No. 26/2011 be registered, heard and determined by the ELC. The court, Mwangi Njoroge J, selected Ground 10 - lack of jurisdiction - as capable of disposing of the appeal. Relying on Section 3(1) of the now-repealed Land Disputes Tribunal Act, which confined tribunals to boundary disputes, claims to occupy or work land and trespass, the court held that a claim to compel transfer of portions of registered land fell outside that mandate and within the ELC. Applying Owners of the Motor Vessel 'Lillian S', the court allowed the appeal, set aside the tribunal award and all consequential orders, and ordered each party to bear its own costs, expressing sympathy for the respondents and other buyers.

Key legal issues

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01

Jurisdiction of the Kwanza Land Disputes Tribunal over a dispute involving registered land

Holding

The tribunal exceeded its statutory jurisdiction. The dispute was a claim to compel transfer of portions of registered land (title under the Registered Land Act Cap 300), which does not fall within Section 3(1) of the Land Disputes Tribunal Act covering boundary disputes, claims to occupy or work land, and trespass.

Reasoning

The respondent's grievance before the tribunal was that although the appellant had sold land to him and other buyers, he refused to transfer the portions or take them to the Land Control Board. The court held this is not trespass, a claim to work land, or a boundary dispute. Registered land title had issued, and numerous court decisions have nullified tribunal awards over registered land. The award was therefore a nullity.

p. 3
02

Whether the fact that all parties agreed before the tribunal saved the award

Holding

No. Even though the parties were in agreement on the issues and the appellant undertook to take buyers to the Land Control Board, the tribunal still lacked jurisdiction over the registered-land dispute.

Reasoning

The court noted that all parties were in agreement and the appellant admitted selling the land, but asked whether such a decision should be quashed because the land was registered. Applying the statute and precedent, the answer was that the tribunal could not exercise power it did not possess, regardless of consensus between the parties.

p. 3
03

Effect of want of jurisdiction on the adopted award

Holding

The award adopted as the judgment of the Kitale Chief Magistrate's Court was null and had to be set aside together with all consequential orders.

Reasoning

Relying on the Owners of the Motor Vessel 'Lillian S' principle that jurisdiction is everything and a decision rendered without jurisdiction amounts to nothing, the court held the tribunal's award void, and since the jurisdictional issue disposed of the entire appeal, the other grounds of appeal were not considered.

p. 3

Legal principles established

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  • The jurisdiction of Land Disputes Tribunals under Section 3(1) of the Land Disputes Tribunal Act was restricted to division or determination of boundaries to land, claims to occupy or work land, and trespass to land; a claim to compel a registered proprietor to transfer sold portions of registered land falls outside that jurisdiction
  • A tribunal can only do that which it is mandated to do; without jurisdiction no court or tribunal can move even one step forward

Court orders

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  1. 1.The appeal succeeds on the jurisdictional ground alone; the court does not delve into the other grounds of appeal
  2. 2.The elders' award filed in Kitale CMC Land Case No. 9 of 2011 and all consequential orders are set aside
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 3(1)
  • Environment and Land Court ActSection 31 (repealing provision); Section 30
  • Registered Land ActCap 300 (now repealed)

Cases cited (3)

  • Mary Mukhonja -vs- Maxwel Burudi, Joseph Kidemuk
    Kitale ELC Civil Appeal No. 4 of 2018
  • Asman Maloba Wepukhulu and Another -vs- Francis Wakwabubi Biketi
    Kisumu CA Civil Appeal No. 157 of 2001
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
On appeal from
Kwanza Land Disputes Tribunal (award adopted as judgment in Kitale Chief Magistrate's Land Case No. 9 of 2011)
Kwanza Land Disputes Tribunal Case No. 2 of 2010
Jurisdiction invoked
Appeal from a Land Disputes Tribunal award under Section 30 of the Environment and Land Court Act No. 19 of 2011, per the Court of Appeal's order in Civil Appeal No. 71 of 2016 directing registration, hearing and determination of Land Disputes Appeal Cause No. 26/2011 by the ELC

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, "Christopher Wafula Mutoro v Richard Lordia Lokere [2019] KEELC 358 (KLR)", Case Analysis (2019). Kitale ELC No. 3 of 2017 (being an appeal against the award in Kitale CM Land Case No. 9 of 2011 arising from Kwanza Land Disputes Tribunal Case No. 2 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/358/eng@2019-12-04

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