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ELCDismissedELC Case No. 315 of 2015· [2019] KEELC 4099 (KLR)

Joseck Musoga Mukalani v George Milimu Sahani [2019] KEELC 4099 (KLR)

Environment and Land Court at Kakamega
19 March 2019
NMN.A. Matheka
1,467 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a bid to enforce a 2001 land tribunal award because tribunals had no power to decide ownership of registered land.

What this practically means

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Executive summary

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The plaintiff sued seeking cancellation of the defendant's title to land parcel No. Isukha/Shitochi/3143 and its registration in his own name, relying on an award of the Shinyalu Land Disputes Tribunal made around 2001 in favour of his father and adopted by the Kakamega Chief Magistrates Court in Miscellaneous Application No. 226 of 2001, together with a survey report dated 13/9/2013. The defendant contended that the tribunal had no jurisdiction to cancel or transfer registered land and that he inherited the suit land from his father, Fabian Sahani Milimu, producing an official search, a certificate of confirmation of grant and a death certificate. The court identified the fundamental question as whether the tribunal had jurisdiction to make the award sought to be enforced. Applying section 3(1) of the repealed Land Disputes Tribunal Act, which confined tribunals to boundary disputes, claims to occupy or work land and trespass, and following M'Marete v Republic, the court held that the dispute before the tribunal was essentially a claim to ownership of registered land and therefore a nullity incapable of adoption or enforcement. The court also held that under sections 24(a) and 26(1) of the Land Registration Act the defendant's registered title was prima facie indefeasible and that no fraud, misrepresentation or corrupt scheme was proved against him, citing Elijah Makeri Nyangw'ra. Further, the plaintiff, suing on a power of attorney from his deceased father, lacked locus standi. The suit was dismissed with costs on 19th March 2019.

Key legal issues

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01

Jurisdiction of the Shinyalu Land Disputes Tribunal over the dispute

Holding

The tribunal lacked jurisdiction because the dispute was a claim to ownership of registered land, not a boundary, occupancy or trespass dispute, so its award was a nullity incapable of adoption or enforcement

Reasoning

Section 3(1) of the Land Disputes Tribunal Act confined tribunals to civil disputes over division or determination of boundaries, claims to occupy or work land, and trespass. The dispute before the Shinyalu Tribunal was essentially a claim to ownership of registered parcel Isukha/Shitochi/3143. Following M'Marete v Republic, the tribunal went beyond its jurisdiction, and a nullity cannot be enforced or adopted by the court.

p. 2
02

Indefeasibility of the defendant's title under the Land Registration Act

Holding

The defendant, as registered proprietor, holds an indefeasible title; the plaintiff proved no fraud, misrepresentation or corrupt scheme to impugn it

Reasoning

Sections 24(a) and 26(1) of the Land Registration Act vest absolute ownership in the registered proprietor and render the certificate of title prima facie evidence of indefeasible ownership, subject only to challenge on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. No such evidence was adduced against the defendant, who inherited the land from his father.

p. 3
03

Plaintiff's locus standi based on a power of attorney

Holding

The plaintiff lacked locus to prosecute the matter as he could not rely on a power of attorney granted by his father who is deceased

Reasoning

The plaintiff's father, Charles Mukalani Ashivaka alias Amuganya, was the party to the original tribunal dispute and the plaintiff sued through a power of attorney (PEx4). The court found that a power of attorney cannot be relied upon long after the donor's death, so the plaintiff had no locus standi to prosecute the claim in his own name.

p. 3

Legal principles established

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  • Land Disputes Tribunals under the repealed Land Disputes Tribunal Act had no jurisdiction to determine claims to title or ownership of registered land, being confined to boundary disputes, claims to occupy or work land, and trespass
  • A court cannot enforce or adopt a decision that is a nullity for want of jurisdiction
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • A power of attorney does not survive the death of the donor and cannot ground locus standi after the donor's death

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Land Disputes Tribunal Act (now repealed), No. 18 of 1990Section 3(1)

Cases cited (3)

  • Elijah Makeri Nyangw'ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • M'Marete v Republic & 3 others
    Civil Appeal 259 of 2000 [2004] eKLR
  • Masagu Ole Naumo v Principal Magistrate Kajiado Law Courts & Another
    JR 370 of 2013 [2014] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; suit commenced by plaint dated 15th December 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseck Musoga Mukalani v George Milimu Sahani [2019] KEELC 4099 (KLR)", Case Analysis (2019). ELC Case No. 315 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4099/eng@2019-03-19

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