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ELCAllowedELC Appeal No. 13 of 2018 (Formerly Nakuru High Court Civil Appeal No. 9 of 2014)· [2019] KEELC 3020 (KLR)

Mwangi Gichama v Wanjiru Kingori & another [2019] KEELC 3020 (KLR)

Environment and Land Court
11 June 2019
MOM.C. Oundo
6,184 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan landowner whose title came from an adopted Tribunal award won his appeal, and his relatives were ordered to exhume the bodies buried on his land.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nyahururu against the judgment of Ag Senior Principal Magistrate D.K. Mikoyan delivered on 11th December 2013 in PMCC No. 95 of 2004, consolidated with PMCC No. 117 of 2005, dismissing the Appellant's suits. The Appellant sought declarations that he was the absolute owner of Laikipia/Salama Muruku Block 1/332 (old No. 191), that the Respondents' burial of Kanyeki Kingori and Kingori Kanyeki on the land was illegal, and orders for exhumation. The trial Magistrate had found that the elders' award underlying the Appellant's title was issued without jurisdiction and dismissed the suits. On appeal, the court reconsidered the evidence as a first appellate court and framed four issues: the Tribunal's jurisdiction, the Magistrate's power to question an adopted award, ownership of the suit land, and trespass. The court held that although the Land Disputes Tribunal lacked jurisdiction to cancel a registered title, the Magistrate in Nyahururu SRMCC No. 52 of 1990 was under a statutory duty under Section 7(2) of the repealed Act to adopt the award, which became a valid judgment and decree. The Respondents never appealed or sought certiorari, and the Appellant was duly registered as absolute proprietor, his title protected under Section 26(1) of the Land Registration Act. The trial Magistrate therefore erred in questioning the adopted award. The Respondents' burial of the bodies amounted to trespass. The appeal was allowed, the trial judgment set aside, and the trial court's substituted orders declared the Appellant the absolute owner, declared the burials illegal, ordered exhumation (with OCPD Laikipia to enforce in default), and awarded costs to the Appellant in both the appeal and the suit.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over registered land title

Holding

The Tribunal had no jurisdiction to determine matters concerning title to land registered under the Registered Land Act; its jurisdiction under Section 3(1) was limited to boundary disputes, claims to occupy or work land, and trespass.

Reasoning

Section 3(1) of the repealed Land Disputes Tribunals Act limits Tribunal jurisdiction to disputes over division or boundaries of land, claims to occupy or work land, and trespass. It does not vest jurisdiction to determine matters under the Registered Land Act, Cap 300. The Tribunal's award requiring cancellation of a registered title was therefore beyond its powers, though the award was later adopted by a Magistrate's court.

p. 5
02

Effect of adoption of a Tribunal award as a court judgment

Holding

Once adopted under Section 7(2) of the Act, the award became a judgment of a court of competent jurisdiction, enforceable as a decree, and could not be questioned in later proceedings unless set aside on appeal or by certiorari.

Reasoning

The Magistrate was under a statutory compulsion to enter judgment in terms of the award once received. The award was not challenged by appeal to the Appeals Committee or by certiorari before the High Court; the Appellant executed the decree and was registered as proprietor. The judgment, having been perfected into a decree, could not be surgically separated from the award, and remains valid until overturned in appropriate proceedings.

p. 7
03

Error of the trial Magistrate in questioning the adopted award

Holding

The trial Magistrate erred in law in questioning the award adopted as a judgment by a court of equal status, as he lacked appellate jurisdiction in the circumstances.

Reasoning

The first appellate court found that the trial Magistrate, hearing a suit based on an existing decree, wrongly purported to examine the validity of the Tribunal award underlying that decree. A Magistrate of equal status had no jurisdiction to review the decree in PMCC No. 52 of 1990; the proper remedies were appeal or certiorari, neither of which was pursued by the Respondents.

p. 7
04

Trespass by burial on the Appellant's land

Holding

The Respondents, having no interest in the suit land, wrongfully interred the bodies of Kanyeki Kingori and Kingori Kanyeki, amounting to trespass and an illegal act.

Reasoning

The Appellant held indefeasible title to the suit land following the adopted award and registration. The Respondents' burial of two bodies on land in which they had no interest was wrongful. The court consequently granted the declaratory and exhumation orders mirroring the prayers in the consolidated suits.

p. 7

Legal principles established

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  • A Magistrate's court receiving a Tribunal award has a statutory duty to enter judgment in terms of the award and may not alter, amend, question or set it aside.
  • A Land Disputes Tribunal has no jurisdiction over title to registered land under the Registered Land Act.
  • A valid judgment of a court of competent jurisdiction remains enforceable unless set aside, and a party who fails to pursue available avenues to impugn it cannot later challenge it.
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme.

Court orders

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  1. 1.The judgment and decree of the learned Acting Senior Principal Magistrate dismissing Nyahururu PMCC 95 of 2004 as consolidated with Nyahururu PMCC No. 117 of 2005 set aside
  2. 2.Title No. Laikipia/Salama Muruku Block 1/332 (old No. 191) declared to belong to the Plaintiff absolutely
  3. 3.Declared that the Respondents' action in interring the remains of Kingori Kanyeki and Kanyeki Kingori on the suit land was illegal
  4. 4.The Respondents jointly and severally to exhume the remains of Kingori Kanyeki and Kanyeki Kingori from the suit land, and in default the OCPD Laikipia to be directed and authorized to exhume and have the remains interred in any cemetery at the cost of the Respondents
  5. 5.Respondents to pay costs of both the appeal and the suit at the Magistrate's court together with interest at court rates

Authorities

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Legislation

  • Magistrates' Courts Act (repealed)Section 9E(1)
  • Registered Land Act (repealed)Section 27
  • Registered Land Act (repealed)Section 32
  • Registered Land Act (repealed)Section 30(g)
  • Registered Land Act (repealed)Section 143
  • Land Registration ActSection 26(1)
  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Land Disputes Tribunal Act (repealed)Section 4
  • Land Disputes Tribunal Act (repealed)Section 7(2)
  • Land Disputes Tribunal Act (repealed)Section 8(8) and (9)
  • Magistrate's Jurisdiction (Amendment) Act, 1981
  • Land Act
  • Civil Procedure RulesOrder 42 Rule 32

Cases cited (13)

  • Andrew Kimani Ngumba & Another vs Zakaria Muigai Kibe
    [1997] eKLR
  • Martha Kigen vs Johanan Tibino
    [2014] eKLR
  • Mwanasokoni vs Kenya Bus Service Ltd Civil Appeal No. 35 of 1985
    [1985] eKLR
  • Moses Makokha Osanya vs Elekia Mabosio Marenga
    [2018] eKLR
  • Eunice Muthoni Gatugi vs Lusalia Wamweru & Other
    [2018] eKLR
  • Kenya Power and Lighting Company Ltd vs Bensene Holdings Ltd T/A WYCO Paints
    [2016] eKLR
  • Joseph Karobia Gicheru vs Michael Gachki Gicheru
    [2013] eKLR
  • Seascapes Ltd v. Development Finance Company of Kenya Ltd
    [2009] KLR, 384
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Peter Ouma Mitai vs. John Nyarara
    [2008] eKLR
  • Zedekiah M Mwale vs. Bikeke Farm Directors & Another
    [2004] eKLR
  • Kenya National Examination Council vs Republic (Exparte Geoffrey Gathenji & Another
    Civil Appeal No. 266 of 1996
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others
    [2014] eKLR
On appeal from
Principal Magistrate's Court at Nyahururu
PMCC No. 95 of 2004 (consolidated with PMCC No. 117 of 2005)
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act (appeal from the Principal Magistrate's Court), transferred to the Environment and Land Court

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, "Mwangi Gichama v Wanjiru Kingori & another [2019] KEELC 3020 (KLR)", Case Analysis (2019). ELC Appeal No. 13 of 2018 (Formerly Nakuru High Court Civil Appeal No. 9 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3020/eng@2019-06-11

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