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ELCDismissedEldoret HCCC (not stated in judgment; plaint dated 23rd November 2013)· [2019] KEELC 976 (KLR)

Paul Francis Njoroge v Annah Nduta Njoroge & 5 others [2019] KEELC 976 (KLR)

Environment and Land Court of Kenya
4 October 2019
MOM. A. ODENY
2,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to overturn a 2002 Tribunal boundary decision, because the Tribunal had jurisdiction and the landowner never appealed in time.

What this practically means

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Executive summary

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By a plaint dated 23rd November 2013 the plaintiff sought declarations that the proceedings and decision of the Uasin Gishu Land Disputes Tribunal of 22nd January 2002, which revoked the 1999 survey boundaries over LR Uasin Gishu/Kimumu/1638-1644 and ordered a resurvey, together with the adoption of that decision in Eldoret Chief Magistrate's Court award No. 23 of 2002, were a nullity for want of jurisdiction; that the 1999 survey boundaries be reinstated; and that LR Uasin Gishu/Kimumu/1092 had ceased to exist in 1999. The defendants argued the dispute was a boundary dispute within the Tribunal's mandate under section 3(1)(a) of the Land Disputes Tribunals Act (repealed), that the suit was res judicata, and that the plaintiff ought to have appealed to the Provincial Appeals Committee or sought judicial review. Odeny J held that, on a reading of the Tribunal's orders, the dispute was a boundary dispute and not title to land, so the Tribunal had jurisdiction. The court accepted that a declaratory suit remains available even where judicial review or appeal exists, citing Entwistle and Machani, but found the suit failed because the Tribunal had jurisdiction and the plaintiff had not pursued the statutory avenues nor enjoined the Tribunal, the Attorney General or the Magistrate's court. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the Land Disputes Tribunal had jurisdiction over the dispute

Holding

The Tribunal had jurisdiction because the dispute was one of boundaries, within section 3(1)(a) of the Land Disputes Tribunals Act

Reasoning

Section 3(1) limited Tribunal jurisdiction to division or determination of boundaries, claims to occupy or work land, and trespass. Examining the Tribunal's determination, the court found its orders concerned revocation of fixed boundaries and a resurvey, not cancellation of title. The dispute was therefore a boundary dispute within the Tribunal's mandate, and the court declined to declare the proceedings a nullity.

p. 5
02

Whether a declaratory suit could be used to impugn the Tribunal's decision and its adoption by the Magistrate's court

Holding

A declaratory suit is an available relief even where appeal and judicial review exist, but the suit failed because the Tribunal had jurisdiction and the plaintiff failed to pursue the laid-down avenues

Reasoning

The court accepted, citing Entwistle and Machani, that a declaration is not barred merely because judicial review or appeal is available. However, the plaintiff neither appealed to the Provincial Appeals Committee, nor sought judicial review, nor appealed the Magistrate's court judgment. Since the Tribunal had jurisdiction, there was no basis for the declaration sought, and laid-down procedures must be adhered to.

p. 5

Legal principles established

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  • The jurisdiction of Land Disputes Tribunals was limited to boundary disputes, claims to occupy or work land, and trespass - not title to land
  • A declaratory suit remains an available remedy notwithstanding that judicial review or appeal avenues exist
  • A valid judgment of a court, unless overturned on appeal, remains enforceable irrespective of questions of jurisdiction, and a party who sleeps on his rights cannot obtain declaratory relief

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendants

Authorities

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Legislation

  • Land Disputes Tribunals Act (No. 18 of 1990, now repealed)Section 3(1)
  • Land Disputes Tribunals Act (now repealed)Section 7(1) and 7(2)
  • Land Disputes Tribunals Act (now repealed)Section 8(1)
  • Land Disputes Tribunals Act (now repealed)Section 9
  • Civil Procedure Actenforcement of decree (as referenced in section 7(2))

Cases cited (6)

  • GILBERT NDIGWA MWANGILE V SAMWEL NJAGI M'NYAMBU
    (2017) eKLR, Civil Appeal Case No. 21 of 2017
  • NEWTON WEKESA WANGUSI V LEONARD CHELOTI WALUKANA
    (2014) eKLR, Civil Appeal No. of 2012
  • JAMIN AMEYO V HARRY OMBERA AGEMA
    (2010) eKLR
  • Robert Entwistle – vs- Trustees of Nairobi Baptist Church
    Nairobi Civil Application No 312 of 1999 (CA)
  • Daudi Ngetich Kimibei -vs- Attorney General and Another
    Eldoret HCCC No 55 of 1998
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others
    Civil Appeal 184 of 2011
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court under a declaratory plaint; Land Disputes Tribunals Act (repealed) sections 3(1), 7, 8(1) and 9 considered

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, "Paul Francis Njoroge v Annah Nduta Njoroge & 5 others [2019] KEELC 976 (KLR)", Case Analysis (2019). Eldoret HCCC (not stated in judgment; plaint dated 23rd November 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/976/eng@2019-10-04

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