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ELCAllowedNot stated in the judgment (references LDT No 17 of 2011 at Kigumo)· [2019] KEELC 1739 (KLR)

David Kimani Kamau & another v Mary Muthoni & another [2019] KEELC 1739 (KLR)

Environment and Land Court (Murang'a)
16 September 2019
JKJ.G. Kemei
958 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside a Land Dispute Tribunal award that had redistributed family land, because tribunals had no power to decide who owns land.

What this practically means

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Executive summary

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This was an appeal against a decision of the Hon B Kahemba RM in which a Land Dispute Tribunal award was adopted as the judgment of the court. The award, arising from LDT No 17 of 2011 at Kigumo, directed that parcel LOC2/KANDERENDU/1218, registered in the name of the late Joseph Kahingo Kamau, be registered in the names of his five children as proprietors in common, and that the 2nd Appellant, Peter Kamau Kimani, transfer one acre out of parcel LOC2/KANDERENDU/1221 to Virginia Wanjiru Kamau, with the Executive Officer to sign transfer documents. The appeal was unopposed. The Appellants argued that the tribunal lacked jurisdiction: the award determined trust, title and succession matters over registered land, contrary to the limited mandate in section 3(1) of the now-repealed Land Disputes Tribunals Act. The court framed a single issue: whether the tribunal had power to divest the land as it did. Relying on section 3(1) and section 7 of the Act, the Court of Appeal decision in Jonathan Amunavi, and the East African Court of Appeal authority in Sir Ali Bin Salim, the court held that the tribunal had no jurisdiction to determine title or ownership to land and that its award was a nullity, as was the judgment adopting it. The appeal was allowed, the orders of 5/6/12 and all consequential orders were set aside, and no orders as to costs were made.

Key legal issues

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Whether the Land Dispute Tribunal exceeded its jurisdiction by divesting registered land and distributing it among beneficiaries

Holding

The Tribunal exceeded its jurisdiction; its award and the magistrate's judgment adopting it were nullities and were set aside.

Reasoning

Section 3(1) of the Land Disputes Tribunals Act limited tribunals to boundary disputes, division of land, claims to occupy or work land, and trespass. It conferred no power to determine title or ownership, which was reserved to the High Court under section 159 of the repealed Registered Land Act. The tribunal purported to re-register and transfer land, thereby determining title. A decision made without jurisdiction is a void nullity that cannot be cured by consent or waiver of the parties.

p. 2

Legal principles established

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  • A decision arrived at without jurisdiction is a nullity and may be set aside at any time; jurisdiction cannot be conferred by consent or waiver of the parties.
  • Land Dispute Tribunals under the repealed Act had no jurisdiction to determine disputes over title or ownership to land.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The orders of the Court issued on the 5/6/12 (adopting the tribunal award) and all consequential orders thereto are set aside
  3. 3.No orders as to costs
On appeal from
Principal Magistrate's Court (Murang'a) - decision of Hon B Kahemba RM adopting LDT No 17 of 2011 award
LDT No 17 of 2011, Kigumo
Jurisdiction invoked
First appeal from a magistrate's court decision adopting a Land Dispute Tribunal award under the Land Disputes Tribunals Act Cap 303A (now repealed)

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, "David Kimani Kamau & another v Mary Muthoni & another [2019] KEELC 1739 (KLR)", Case Analysis (2019). Not stated in the judgment (references LDT No 17 of 2011 at Kigumo). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1739/eng@2019-09-16

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