Pauline Njambi Kireru v Agnes Wakio Karani & another [2019] KEELC 1729 (KLR)
The bottom line
#A Kenyan High Court threw out a Land Dispute Tribunal award adopted after the law creating tribunals was repealed, ending a family land dispute win.
What this practically means
#Executive summary
#Key legal issues
#Tribunal jurisdiction over occupation of registered land
The tribunal had jurisdiction because the dispute was a claim to occupy or work land under section 3(1)(b) of the Land Dispute Tribunal Act.
The dispute concerned the Respondents' right to occupy and cultivate the portion belonging to the late Lawrence Kinyari Kireru. The court held the elders did not stray from their mandate under section 3, since the claim was one of occupation rather than determination of title to registered land.
Proper constitution of the tribunal
The panel of 9 members exceeded the statutory number, but the appeal failed because no prejudice was demonstrated.
Section 4 of the Act contemplated a chairman plus two or four elders. The award was signed by 9 members. The court noted the excess but held it would only have been fatal if the number were below the statutory quorum, and the Appellant did not show prejudice from the larger panel.
Alleged fabricated proceedings
The allegation was an afterthought; the record shows the Appellant participated and cross-examined the Respondents.
The proceedings confirmed the Appellant participated, called witnesses, cross-examined the Respondents and was present when the award was read. She raised no fabrication complaint before the magistrate or the Provincial Appeals Committee, so the ground failed.
Adoption of the award after repeal of the Land Dispute Tribunal Act
The adoption on 15/9/2011 was erroneous in law and a nullity because the Act had been repealed on 30 August 2011 by section 31 of the Environment and Land Court Act, with no saving provision.
Following Odunga J in Masagu Ole Koitelel Naumo v Principal Magistrate Kajiado Law Courts & another, repeal of the Act removed the magistrate's jurisdiction to adopt tribunal awards, there being no saving or transitional provision for pending proceedings. Adoption after 30 August 2011 was outside the life of the Act and therefore without jurisdiction. This ground was upheld and the appeal allowed on it.
Legal principles established
#- Upon repeal of the Land Dispute Tribunal Act by the Environment and Land Court Act, magistrates' courts lost the power to adopt tribunal awards; adoption after repeal is a nullity.
- A magistrate's jurisdiction to adopt a tribunal award is limited to adoption, without power to set aside, review or vary the award.
- A party alleging improper constitution of a tribunal must show the prejudice suffered; an excess of members above quorum is not fatal if not shown to be prejudicial.
Court orders
#- 1.The appeal is allowed on the ground that the adoption of the Land Dispute Tribunal award on 15/9/2011 was without jurisdiction
- 2.No orders as to costs
- On appeal from
- Senior Resident Magistrate's Court, Kangema
- Not stated (adoption of Land Dispute Tribunal Case 26/2011)
- Jurisdiction invoked
- Appellate jurisdiction over a first-class/PMC appeal from the magistrate's court adopting a Land Dispute Tribunal award
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pauline Njambi Kireru v Agnes Wakio Karani & another [2019] KEELC 1729 (KLR)", Case Analysis (2019). Not stated in the judgment (Tribunal proceedings 26/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1729/eng@2019-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.