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ELCAllowedCivil Appeal No 21 of 2004· [2019] KEELC 1447 (KLR)

Regina Nangunda Tudwe v Margaret Nasimiyu Wasike [2019] KEELC 1447 (KLR)

High Court of Kenya
9 October 2019
BOBoaz N. Olao
1,215 words in judgment
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The bottom line

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Kenya's High Court confirmed Land Disputes Tribunals had no power to cancel registered land titles, so the award against the appellant was set aside.

What this practically means

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Executive summary

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This was an appeal to the High Court at Bungoma (Boaz N. Olao, J) against the award of the Bumula Land Disputes Tribunal, as upheld by the Provincial Land Disputes Appeals Tribunal at Kakamega and adopted as a judgment of the Senior Principal Magistrate's Court, Bungoma, in LDT Case No. 56 of 2003. The dispute was between siblings over parcel WB BUKUSU/N. MYANGA/1909, registered in the Appellant's name since 1994/1995. The Respondent had claimed a share of land she said she inherited from her father, and the Tribunal's verdict of 2nd July 1998 ordered, among other things, cancellation of the Appellant's title and fresh land transaction forms to give the Respondent and a third person, Amisi Asira Orungu (who was not a party), new parcels. The Appellant raised five grounds, principally that the Tribunal lacked jurisdiction over title to registered land and over matters barred by limitation. The court found the appeal determinable on the sole issue of jurisdiction. Relying on Section 3(1) of the repealed Land Disputes Tribunal Act, which confined Tribunals to boundary disputes, claims to occupy or work land, and trespass, and on the Amunavi and Beatrice M'Marete decisions of the Court of Appeal, the court held that a Tribunal cannot determine ownership of registered land nor make awards requiring cancellation of titles or opening of new registers. The appeal was allowed, the Tribunal's award as adopted on 20th May 2004 was set aside, and, the parties being siblings, each was ordered to bear their own costs.

Key legal issues

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01

Whether the Tribunal had jurisdiction to cancel the Appellant's registered title

Holding

The Tribunal exceeded its jurisdiction; the dispute was over ownership of registered land, which is outside Section 3(1) of the Land Disputes Tribunal Act.

Reasoning

At the time the dispute was filed on 30th October 1996, the Appellant was the registered proprietor holding a title issued under the Registered Land Act. Section 3(1) confined Tribunals to boundary disputes, claims to occupy or work land, and trespass. A claim to ownership of registered land could only be tried by the High Court or a Resident Magistrate's Court with jurisdiction. The Tribunal's order cancelling the title and directing new transactions was ultra vires.

p. 2
02

Whether the Appeals Committee erred in upholding the award

Holding

The Appeals Committee similarly acted in excess of jurisdiction by upholding the Tribunal's award.

Reasoning

Since the original award was made without jurisdiction, the appellate committee could not cure that defect by upholding it. The Committee endorsed an award cancelling a registered title and distributing shares to parties including a non-party, which was beyond the statutory mandate of Section 3(1) of the Land Disputes Tribunal Act.

p. 2

Legal principles established

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  • A Land Disputes Tribunal had no jurisdiction to determine a dispute relating to ownership of registered land.
  • A Tribunal award whose implementation entails cancellation of a registered title or sub-division and opening of new registers exceeds the jurisdiction under Section 3(1) of the Land Disputes Tribunal Act.

Court orders

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  1. 1.Appeal allowed
  2. 2.The Tribunal's award as adopted by the Court on 20th May 2004 set aside
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Registered Land Act (then in force)Not specified
  • Limitation of Actions ActNot specified (raised as ground 4)

Cases cited (2)

  • JONATHAN AMUNAVI V. CHAIRMAN SABATIA DIVISION LAND DISPUTES TRIBUNAL & ANOTHER
    C.A Civil Appeal No 256 of 2002 (Kisumu)
  • BEATRICE M'MARETE V R. EX-PARTE JOHN GITONGA MBUI & OTHER
    C.A Civil Appeal No. 259 of 2000 (2004 eKLR)
On appeal from
Provincial Land Disputes Appeals Tribunal at Kakamega (Appeal Case No. 72 of 1998)
Appeal Case No. 72 of 1998
Jurisdiction invoked
Appeal from Land Disputes Tribunal award adopted as judgment of the Senior Principal Magistrate's Court (Land Disputes Tribunal Act); second appeal/appellate jurisdiction under the repealed tribunal framework

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, "Regina Nangunda Tudwe v Margaret Nasimiyu Wasike [2019] KEELC 1447 (KLR)", Case Analysis (2019). Civil Appeal No 21 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1447/eng@2019-10-09

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