Mary Kerubo Ogoti v Chief Magistrate’s Court Kisii & 5 others [2019] KEELC 2353 (KLR)
The bottom line
#A Kenyan land tribunal overstepped by ruling on registered land title, so every resulting transfer was cancelled and the owner got her land back.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Disputes Tribunal over title to registered land
The Tribunal acted without jurisdiction in determining disputes over ownership of registered land parcels; its awards were null and void ab initio
Section 3(1) of the Land Disputes Tribunals Act confines the Tribunals to specified matters and does not extend to ownership or title to registered land. The Kiogoro Tribunal's two awards directed transfer of the Petitioner's registered parcels to the Respondents, thereby dealing with title. The court, relying on Lucy Bosire and Joseph Oginga Onyoni, held that a decision made without jurisdiction is a nullity, irrespective of the parties' participation, and cannot be validated by adoption.
Effect of adoption of a void award by the Magistrate's Court
The adoption of the Tribunal's award as judgment and decree by the Chief Magistrate's Court was itself null and void; a nullity cannot beget validity
Applying Macfoy v United Africa Co Ltd, an act which is void is incurably bad and every proceeding founded on it is equally bad. The court held the Magistrate's Court was not enabled by Section 7 of the Act to adopt illegal and void awards; the execution, cancellation of the Petitioner's titles and issuance of new titles to the Respondents rested on a void process and must be nullified with rectification of the register.
Res judicata arising from the earlier judicial review applications struck out
The Petition was not barred by res judicata because the judicial review applications were struck out on a procedural technicality (want of leave) and not determined on the merits
Res judicata requires a final adjudication on the merits by a court of competent jurisdiction. Okong'o, J. had struck out the judicial review applications because leave was a statutory precondition under Section 9 of the Law Reform Act that could not be waived, while observing the applications otherwise had merit. Since striking out was on a technicality, the Petitioner was free to pursue a fresh suit on the merits.
Legal principles established
#- A decision made by a tribunal without or in excess of jurisdiction is a nullity ab initio, and its adoption as a court judgment does not cure the nullity
- Land Disputes Tribunals had no jurisdiction under Section 3(1) of the Land Disputes Tribunals Act to deal with ownership or title to registered land, and awards touching title are a nullity
- A Magistrate's Court cannot validly adopt and enter judgment on a Tribunal award that is null and void
Court orders
#- 1.Declaration that the Petitioner is entitled to protection under the Constitution (prayer (a))
- 2.Declaration that the complaint, proceedings and award of the Land Disputes Tribunal, Kiogoro Division, adopted by the 1st Respondent in Kisii CMCC Land Dispute Tribunal Case Nos 63 and 66 of 2011 and the resultant decrees were illegal, null and void for want of jurisdiction (prayer (b))
- 3.Declaration that the process of enforcement, execution and implementation of the decree, culminating in revocation of the Petitioner's titles, was void (prayer (c))
- 4.Declaration that the transfer and registration of titles to LR Nos Nyaribari Chache/B/B/Boburia/9154, 9155 and 9156 in favour of the 4th and 5th Respondents was anchored on an illegal and void process and ought to be nullified (prayer (d))
- 5.Order for cancellation of the titles in favour of the 4th and 5th Respondents and rectification of the register for LR Nos Nyaribari Chache/B/B/Boburia/9154, 9155 and 9156 to read the name of the Petitioner (prayer (e))
- 6.Each party to bear their own costs of the Petition
- Jurisdiction invoked
- Constitution of Kenya - petition for enforcement of rights/judicial review of want of jurisdiction; Land Disputes Tribunals Act No. 18 of 1990, Section 3(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Kerubo Ogoti v Chief Magistrate’s Court Kisii & 5 others [2019] KEELC 2353 (KLR)", Case Analysis (2019). Petition filed 20th March 2014 (Kisii ELC); related: Kisii CMCC (Land Case) Nos 63 and 66 of 2011; Kisii ELC Misc. Civil Application Nos 69 and 70 of 2011 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2353/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.