Elijah Somboriot Cheruiyot & 3 others v Anthony Kiarie Waithaka & 3 others [2019] KEELC 2873 (KLR)
The bottom line
#A Kenyan court cancelled land titles obtained through a tribunal that had no power to decide land ownership disputes, returning the land to the original owners.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Disputes Tribunal over title to registered land
The Tribunal acted ultra vires and in excess of jurisdiction; its award was a nullity
Section 3(1) of the Land Disputes Tribunals Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass. The Tribunal here determined ownership of land registered under the Registered Land Act and ordered cancellation of titles, which it had no power to do. A decision made without jurisdiction is void and all consequential orders, including the decree and transfers, are nullities.
Availability of a declaratory suit as an alternative to appeal or judicial review against a Tribunal award
The court has jurisdiction to grant declaratory relief nullifying a Tribunal award despite the existence of appeal and judicial review avenues
Relying on Nicholas Njeru v Attorney General, Daudi Ngetich Kimibei, Emily Chepkemoi Ngeyoni and Lekinyot Ole Lanke, the court held that the jurisdiction to grant declarations is not taken away except by clear words, and that a party who was never joined to the tribunal proceedings and learned of the award too late cannot be left without remedy on procedural technicalities.
Impeachability of the Defendants' titles under Section 26(1) of the Land Registration Act
The Defendants' titles were procured unprocedurally and through misrepresentation and must be impeached
Although title is prima facie indefeasible, protection falls away where acquisition is illegal, unprocedural or through a corrupt scheme. The 1st Defendant knowingly bypassed the registered proprietor Plaintiffs at the Tribunal, procured cancellation of their titles and registration to himself, and the resulting chain of transfers to the 2nd, 3rd and 4th Defendants rests on that void foundation.
Innocent purchaser for value defence by the 2nd, 3rd and 4th Defendants
The defence does not avail where the vendor's root of title was itself void; the purchasers acknowledged they had no claim to parcel 6530
The 2nd to 4th Defendants themselves testified that after discovering the land was occupied they accepted an alternative parcel (6532) from the 1st Defendant and were content to transfer 6530 back as the court directed. Their title derived from a registration procured through a void tribunal award and decree and could not stand.
Legal principles established
#- Land Disputes Tribunals had no jurisdiction to determine disputes over ownership of title to registered land or to order cancellation of titles; such awards and all proceedings flowing from them are null and void
- A decision of a tribunal without jurisdiction is a nullity requiring no order to set it aside, and it may be challenged by way of declaratory suit
- A registered title under Section 26(1) of the Land Registration Act may be impeached where it was acquired illegally, unprocedurally or through a corrupt scheme
Court orders
#- 1.A declaration that the award of the Laikipia West District Rumuruti Division Land Dispute Tribunal in Claim No. 107 of 2008 is null and void
- 2.A declaration that the decrees dated 30th August 2011 in Nyahururu PMCC Land Dispute No. 15 of 2011 are null and void
- 3.Cancellation and setting aside of the 1st Defendant's registration and titles to parcels Laikipia/Marmanet North Rumuruti Block 2 (Ndurumo)/6529, 6530 and 6531
- 4.Cancellation and setting aside of the 2nd, 3rd and 4th Defendants' registration and title to parcel 6530
- 5.Reinstatement of the Plaintiffs' registration and titles as absolute proprietors of parcels 6529, 6530 and 6531
- 6.Costs of the suit with interest, borne by the 1st Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over title to registered land; supervisory jurisdiction to nullify decisions of inferior tribunals acting in excess of jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Somboriot Cheruiyot & 3 others v Anthony Kiarie Waithaka & 3 others [2019] KEELC 2873 (KLR)", Case Analysis (2019). ELC Case No. 100 of 2017 (Consolidated with ELC No. 118 of 2017, formerly Nakuru No. 405 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2873/eng@2019-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.