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ELCAllowedELC Case No. 100 of 2017 (Consolidated with ELC No. 118 of 2017, formerly Nakuru No. 405 of 2013)· [2019] KEELC 2873 (KLR)

Elijah Somboriot Cheruiyot & 3 others v Anthony Kiarie Waithaka & 3 others [2019] KEELC 2873 (KLR)

Environment and Land Court
25 June 2019
10,357 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This consolidated suit (ELC 100 of 2017 with ELC 118 of 2017) concerned parcels Laikipia/Marmanet North Rumuruti Block 2 (Ndurumo)/6529, 6530 and 6531, arising from subdivision of the original parcel 312. The Plaintiffs, registered proprietors since 2002-2003 and in occupation, discovered in 2013 that their titles had been cancelled and the parcels registered to the 1st Defendant pursuant to decrees issued on adoption of an award of the Laikipia West District Rumuruti Division Land Dispute Tribunal in Claim No. 107 of 2008, which decrees were issued in Nyahururu PMCC Land Dispute No. 15 of 2011. The 1st Defendant then transferred parcel 6530 to the 2nd, 3rd and 4th Defendants, who claimed to be innocent purchasers for value but conceded at trial that they had accepted an alternative parcel and had no claim to 6530. The Plaintiffs sought declarations that the Tribunal award, the decrees, the registrations and transfers were null and void, cancellation of the Defendants' titles, reinstatement of their own titles, and a permanent injunction. The court held that under Section 3(1) of the Land Disputes Tribunals Act, the Tribunal had no jurisdiction over ownership of registered land or cancellation of titles, and its award was ultra vires and a nullity; following Macfoy and other authorities, all consequential orders fell with it. The court further held it had jurisdiction to grant declaratory relief notwithstanding the alternative remedies of appeal and judicial review. Finding the Defendants' titles procured unprocedurally and through misrepresentation within the meaning of Section 26(1) of the Land Registration Act, the court allowed the Plaintiffs' claim entirely as prayed, with costs and interest borne by the 1st Defendant.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over title to registered land

Holding

The Tribunal acted ultra vires and in excess of jurisdiction; its award was a nullity

Reasoning

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.

p. 11
02

Availability of a declaratory suit as an alternative to appeal or judicial review against a Tribunal award

Holding

The court has jurisdiction to grant declaratory relief nullifying a Tribunal award despite the existence of appeal and judicial review avenues

Reasoning

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.

p. 12
03

Impeachability of the Defendants' titles under Section 26(1) of the Land Registration Act

Holding

The Defendants' titles were procured unprocedurally and through misrepresentation and must be impeached

Reasoning

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.

p. 12
04

Innocent purchaser for value defence by the 2nd, 3rd and 4th Defendants

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.A declaration that the decrees dated 30th August 2011 in Nyahururu PMCC Land Dispute No. 15 of 2011 are null and void
  3. 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. 4.Cancellation and setting aside of the 2nd, 3rd and 4th Defendants' registration and title to parcel 6530
  5. 5.Reinstatement of the Plaintiffs' registration and titles as absolute proprietors of parcels 6529, 6530 and 6531
  6. 6.Costs of the suit with interest, borne by the 1st Defendant

Authorities

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Legislation

  • Land Disputes Tribunals ActSections 3(1), 7(1), 7(2), 8(1)
  • Registered Land Act (Cap 300, repealed)Section 143
  • Land Registration ActSection 26(1)
  • Civil Procedure RulesOrder 11; Order 53; Order 1 Rule 9
  • Constitution of KenyaArticle 40; Article 195(2)(d)
  • Land Actnot specified
  • Legal Notice No. 181 of 2003not specified

Cases cited (22)

  • Kiplangat Arap Biator v Esther Tala Chepyegon
    Nakuru HCCC No.70 of 2004
  • Wangila Situma Wakali v Andrew Makhanu Mutoro & another
    (2006) eKLR
  • Republic v Kajiando Lands Disputes Tribunal & others, ex-parte Ann Nguhi Mwai
    Nairobi HC Misc.Appl.No.689 of 2001
  • Republic v Nyandarua District Land Disputes Tribunal & others, ex-parte Naftali Mwathi Mwangi
    Nakuru HC Misc.Appl.No.314 of 2004
  • Mutahi Kamau v Riccanda Wanjiru Mutahi
    Nyeri HC CA No.65 of 2002
  • Beatrice M'Marete v Republic & another
    Civil Appeal No.259 of 2000
  • Republic v Ndaragwa Land Disputes Tribunal and others, Ex-parte Miriam Wambui Mwangi
    Nakuru HC Judicial Review Appl.No.83 of 2009
  • Republic v Ndaragwa Division Land Disputes Tribunal & others Ex-parte Muricho Ranching Co. Ltd
    Nakuru ELC Judicial Review No.18 of 2013
  • Republic v Ol Joro Orok Division Land Dispute Tribunal & others
    Nakuru HC Judicial Review No.52 of 2012
  • Ngige v Chomba & 3 others
    [2004] 1 KLR 597
  • Joseph Njugu Muriuki v James Ngari Ibrahim Gichohi
    Nakuru HCCC No.285 of 2009
  • Speaker of the National Assembly vs Hon James Njenga Karume
    (1992) eKLR
  • Eddah Wanjiru Gathumba vs Jeremiah Gitau Nelson and 6 others
    (2018) eKLR
  • Peter Ochara Anam & 3 Others vs Constituencies Development Fund Board & 4 Others
    (2011) eKLR
  • Boniface Mwangi vs Resident Magistrates Court at Milimani & 2 Others
    (2015) eKLR
  • Republic v Kajiado North District Ngong Land Disputes Tribunal & another Ex-Parte Caroline Wambui Ngunjiri & 2 others
    [2014] eKLR
  • Macfoy vs United Africa Co. Ltd
    [1961] 2 ALL ER 1169 at 1172
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others
    [2014] eKLR
  • Nicholas Njeru v Attorney General & 8 others
    [2013] eKLR
  • Daudi Ngetich Kimibei Vs AG
    Eldoret HCCC No. 58 of 1998
  • Emily Chepkemoi Ngeyoni & Another vs Nicholas Kipchumba Kogo & Another
    Eldoret HCCC No. 270 of 2005
  • Lekinyot Ole Lanke v Attorney General & 2 others
    [2015] eKLR
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

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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, "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.