Johana Chepkurui Kibiwott v Micah Cheboi Kibiwot [2019] KEELC 1894 (KLR)
The bottom line
#The High Court dismissed a landowner's appeal, confirming that land disputes must go through the forum the law requires, and adopted tribunal awards are final.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Magistrate's Court to refer the dispute to the Land Disputes Tribunal
The Magistrate did not err; the Land Disputes Tribunal Act then in force vested jurisdiction over subdivision/boundary disputes and claims to occupy or work land in the Tribunal
Section 3(1) of the Land Disputes Tribunal Act (now repealed) mandated Tribunals to hear and determine disputes over division of or boundaries to land and claims to occupy or work land. The dispute here concerned subdivision of the suit parcel, squarely within the Tribunal's statutory mandate. The court's alternative would have been striking out the suit for lack of jurisdiction; referral was therefore proper and the ground of appeal failed.
Adoption of the Tribunal award and stay of execution
The Magistrate correctly adopted the award; once adopted, the court was functus officio and could not revisit the award's legality or efficacy
Section 7(2) of the Land Disputes Tribunal Act was in mandatory terms requiring the court to enter judgment in accordance with the Tribunal's decision, whereupon a decree issues and is enforceable under the Civil Procedure Act. Having adopted the award without adding to or subtracting from it, the court could not entertain questions of its legality; an aggrieved party's remedy lay elsewhere. The refusal of stay was therefore lawful.
Objection to place of suing / transfer
The objection fails; under Sections 16 and 17 of the Civil Procedure Act a court may transfer a suit on its own motion and place-of-suing objections cannot be raised on appeal if not taken at first instance
The court read Section 17 of the Civil Procedure Act as permitting a court of its own motion to transfer a suit, including to the then-existing Land Disputes Tribunal. Section 16 bars objections to the place of suing on appeal unless raised in the court of first instance. The appellant also failed to state grounds on which the Tribunal allegedly lacked jurisdiction, so this ground could not have changed the outcome.
Legal principles established
#- Where a statute establishes a dispute resolution mechanism, that mechanism must be followed, and a party who bypasses it cannot claim denial of rights
- Under Section 3(1) of the Land Disputes Tribunal Act, disputes as to division of or boundaries to land, claims to occupy or work land, and trespass to land were to be heard and determined by a Land Disputes Tribunal
- Upon adoption of a Tribunal's award under Section 7(2) of the Land Disputes Tribunal Act, the adopting court becomes functus officio and cannot entertain the legality or efficacy of the award
- An objection as to the place of suing cannot be raised on appeal unless it was taken in the court of first instance (Sections 16 and 17, Civil Procedure Act)
Court orders
#- 1.The appeal (both consolidated appeals) dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Chief Magistrate's Court at Eldoret and Resident Magistrate's Court at Iten
- Eldoret CMCC No. 1344 of 2004; Iten RMCC LDT Case No. 7 of 2006
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the subordinate courts (Memoranda of Appeal dated 2nd March 2005 and 14th March 2007); appeals consolidated by ruling of P. M. Mwilu, J dated 2nd December 2009
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johana Chepkurui Kibiwott v Micah Cheboi Kibiwot [2019] KEELC 1894 (KLR)", Case Analysis (2019). Eldoret High Court Civil Appeal No. 21 of 2005 (consolidated with Eldoret High Court Civil Appeal No. 27 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1894/eng@2019-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.