Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 18 of 2018 (formerly HCCC No. 95 of 2010, Nyeri)· [2019] KEELC 3506 (KLR)

Martha Wanjiku Nyutu & 2 others v Susan Mwihaki Njoroge & 2 others [2019] KEELC 3506 (KLR)

Environment and Land Court
9 May 2019
7,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court voided a land tribunal's ownership ruling made without jurisdiction, restoring the original owners' titles and ordering compensation for trespass.

What this practically means

#

Executive summary

#
The three Plaintiffs, registered owners of parcels LOC6/MUTHITHI/1433, 1722 and 1723 acquired through exchange and subdivision of the original parcel 1041 by the 2nd Defendant, sued after the 1st Defendant procured cancellation of their titles through Maragwa Land Disputes Tribunal Case No 146 of 2006, whose award was adopted as a court order in Muranga PMCC LDT Case No 89 of 2007, without the Plaintiffs being made parties. The 1st Defendant defended the tribunal award as lawful and argued res judicata; the 2nd Defendant admitted the Plaintiffs' position and supported the suit; the 3rd Defendant (Land Registrar) denied fraud and did not attend the hearing. The Court held that the tribunal exceeded its statutory mandate under section 3 of the Land Disputes Tribunals Act by determining ownership of registered land, and therefore acted without jurisdiction; its award and the adoption orders were nullities that could not bind the Plaintiffs, who were denied fair hearing and administrative action contrary to Articles 47, 48 and 50. The res judicata plea failed because the tribunal was not a competent court. No fraud was established against the 2nd and 3rd Defendants. The Court cancelled the title over LOC6/MUTHITHI/1041 held by the 1st Defendant, restored the Plaintiffs' titles, quashed the tribunal proceedings and adoption orders, granted a permanent injunction, and awarded nominal general damages of Kshs 250,000 for trespass against the 1st Defendant, who was also condemned to pay the Plaintiffs' costs.

Key legal issues

#
01

Whether the LDT 146 of 2006 proceedings were lawful

Holding

The tribunal acted in excess of its statutory mandate by determining ownership of registered land and is a nullity

Reasoning

Section 3 of the Land Disputes Tribunals Act limited tribunals to boundary determination, claims to occupy or work land, and trespass. The tribunal determined ownership of registered land, exceeding its jurisdiction. Jurisdiction flows from the Constitution or statute, and a body cannot arrogate itself powers the law has not granted. Its orders are therefore illegal, ultravires and a nullity.

p. 5
02

Whether the adoption orders in LDT 89 of 2007 bind the Plaintiffs

Holding

The orders are null and void and do not bind the Plaintiffs' titles

Reasoning

Although the magistrate had power under section 7(2) of the Land Dispute Tribunals Act to adopt the award, what was adopted was an award made without jurisdiction. Under Macfoy v United Africa Co an act that is void is a nullity and cannot be enforced; adopting a void award does not sanitize it. The Plaintiffs, not being parties, were denied fair hearing under Articles 47, 48 and 50 and their titles were cancelled without their being heard.

p. 6
03

Whether the claim is res judicata

Holding

The claim is not res judicata because the tribunal was not a competent court

Reasoning

Applying section 7 of the Civil Procedure Act and the test in John Florence Maritime Services, res judicata requires determination by a court of competent jurisdiction. The Land Dispute Tribunal lacked jurisdiction over ownership of registered land and the magistrate merely adopted the award without power to enjoin parties or entertain contest of the award. The prior High Court and Court of Appeal decisions related to parcel 1041 between different parties.

p. 7
04

Whether the 2nd and 3rd Defendants were guilty of fraud

Holding

No fraud established against either the 2nd or 3rd Defendant

Reasoning

The 2nd Defendant disclosed to the tribunal that the parcels belonged to third parties and was not the complainant; no conspiracy to defraud was found. The 3rd Defendant made entries pursuant to court orders presented to it, and it was the Registrar's vigilance that uncovered the forged orders. The Plaintiffs did not discharge the burden of proof.

p. 7
05

Whether title LOC6/MUTHITHI/1041 should be cancelled

Holding

Yes; the title in the name of the 1st Defendant is cancelled and the Plaintiffs' titles restored

Reasoning

Having found the tribunal proceedings and orders illegal and fraudulently obtained with the connivance of the 1st Defendant, the Court exercised its powers under section 80 of the Land Registration Act (read with section 26) to cancel the 1st Defendant's title and restore the Plaintiffs' titles, rectifying the register accordingly.

p. 7
06

Whether the 1st Defendant trespassed on the suit lands

Holding

Trespass proved; nominal general damages of Kshs 250,000 awarded

Reasoning

Trespass is actionable per se and proof of damage is unnecessary once trespass is established. The 1st Defendant's uprooting of fences and entry onto the suit lands was not disputed, and an interlocutory injunction had already restrained her. The Court awarded nominal general damages of Kshs 250,000 rather than the Kshs 500,000 sought.

p. 8
07

Permanent injunction

Holding

Granted against all Defendants

Reasoning

Applying Giella v Cassman Brown, the Plaintiffs having established their ownership as rightful owners of the suit lands, a prima facie case with a strong likelihood of success was demonstrated warranting a permanent injunction against interference by the Defendants and those claiming under them.

p. 8

Legal principles established

#
  • A land dispute tribunal has no jurisdiction to determine ownership of title to registered land; any such award is a nullity
  • A nullity requires no setting aside; nullities beget nullities and adoption of a void award cannot sanitize it
  • Fraud vitiates proceedings and the proper method of impeaching a completed judgment for fraud is by fresh suit with particulars and strict proof

Court orders

#
  1. 1.A declaration that the proceedings before the Maragwa Land Disputes Tribunal in case No 146 of 2006 and Muranga PMCC LDT case No 89 of 2007, so far as they relate to the rights and ownership of LOC6/MUTHITHI/1433, 1722 & 1723, are illegal, fraudulent and unlawful, null and void and have no binding effect on the suit lands
  2. 2.The proceedings of LDT case No 146 of 2006 and the adoption orders in Muranga PMCC LDT case No 89 of 2007 are quashed entirely
  3. 3.An order directing the Land Registrar Muranga to cancel the title over LOC6/MUTHITHI/1041 and restore parcels LOC6/MUTHITHI/1433, 1722 & 1723 and all resultant subdivisions; the register to be rectified by cancellation of entries Nos. 11-18 and restoration of entry No 10
  4. 4.Titles Nos. LOC6/MUTHITHI/1433, 1722 & 1723 restored in the register in the names of the Plaintiffs
  5. 5.A permanent injunction restraining the Defendants, their agents, servants or anybody claiming under them from interfering with the Plaintiffs' ownership, occupation and absolute rights over parcels LOC6/MUTHITHI/1433, 1722 & 1723
  6. 6.General damages for trespass of Kshs 250,000 payable by the 1st Defendant to the Plaintiffs
  7. 7.The 1st Defendant to meet the costs of the suit in favour of the Plaintiffs

Authorities

#

Legislation

  • Constitution of KenyaArticles 23, 47, 48, 50, 159
  • Land Disputes Tribunals Act (repealed)Sections 3, 7(2)
  • Land Registration ActSections 26, 80
  • Environment and Land Court ActSection 13(7)
  • Civil Procedure ActSections 7, 7(2), 3A
  • Registration of Titles ActSection 75
  • Trespass ActCap 294, section 3(1),(2)
  • Registration of Land ActSection 133(2)(a)

Cases cited (16)

  • Jonesco v Beard
    (1930) AC 219
  • Cole v Longford
    1998 20,36
  • Foong Hong v H. Neotia & Company
    1918 AC 888
  • Kahiga Kamau v Lorien Ranching Co Limited & others
    CA 234 of 2003
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Jandu v Kirpal & Another
    (1975) EA 225
  • James Alukoye Were v Lurambi Division Land Disputes Tribunal
    Misc. Civil Appl. No.165 of 2005
  • Macfoy v United Africa Co. Ltd
    [1961] 2 ALL ER 1169
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 Others
    Civil Appeal No. 246 of 2013 (2015) eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] EKLR
  • National Bank of Kenya Ltd v Wilson Ndolo Ayah
    [2009] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
  • Attorney General & Another ET
    [2012] eKLR
  • Omondi v NBK & Others
    [2001] EA 177
  • Njanju v Wambugu and another
    Nairobi HCC No. 2340 of 1991 (unreported)
Jurisdiction invoked
Article 23 of the Constitution read together with section 13(7) of the Environment and Land Court Act; Article 159 and Articles 47, 48 and 50 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Martha Wanjiku Nyutu & 2 others v Susan Mwihaki Njoroge & 2 others [2019] KEELC 3506 (KLR)", Case Analysis (2019). ELC No. 18 of 2018 (formerly HCCC No. 95 of 2010, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3506/eng@2019-05-09

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