Joel Kitango Busienei & 2 others v Richard Kipkemoi Tue & another [2019] KEELC 4419 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out the appeal because a Land Disputes Tribunal cannot decide who owns land—file title claims in the right court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal had jurisdiction over the dispute
The dispute presented was one over ownership and title to land, which was outside the categories in section 3 of the Land Disputes Tribunal Act; the Tribunal therefore had no jurisdiction
Section 3 of the Land Disputes Tribunal Act limited the Tribunal to disputes over division or boundaries of land, claims to occupy or work land, and trespass. The appellants' claim was essentially for cancellation of the respondents' titles and registration of the parcels in the names of Elizabeth and Esther. That is a claim to ownership and title, which the Tribunal was never empowered to determine, so it acted beyond its statutory mandate.
The effect of a decision made without jurisdiction
Both the Tribunal's and the Appeals Committee's decisions were null and void and were set aside
Where a body acts outside its statutory powers, its decision is a nullity. The court found that both the Tribunal and the Appeals Committee determined a dispute they had no power to hear, and therefore both decisions were void. The court set them aside rather than engaging with the merits of the appeal.
Whether the court could determine ownership within the appeal
No; the court lacked jurisdiction to determine the substance of the title claim within an appeal under section 8(9)
A second appeal under section 8(9) is confined to points of law arising from the decision of the Appeals Committee. Since the underlying decision was a nullity for want of jurisdiction, the court could not determine who owns the parcels within the appeal. The appellants were told to present their claim in the proper forum where all legal and factual issues could be determined.
Legal principles established
#- A decision made by a body without jurisdiction is null and void and must be set aside
- A Land Disputes Tribunal could not determine a claim for ownership and title to land, that claim falling outside section 3 of the Land Disputes Tribunal Act
Court orders
#- 1.The decisions of the Land Disputes Tribunal and the Rift Valley Province Appeals Committee set aside for want of jurisdiction
- 2.The appeal is dismissed
- 3.The appellant to shoulder the costs of the appeal
- 4.The properties in dispute to remain under the prevailing ownership unless and until a successful challenge is made on them
- On appeal from
- Rift Valley Province Appeals Committee
- Jurisdiction invoked
- Section 8(9) of the Land Disputes Tribunal Act, Cap 303A (repealed by the Environment and Land Court Act, 2011)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Petitioners in Petition No. 245 of 2012 v Kenya National Highways Authority & others (application for stay pending appeal)[2013] KEHC 6992 (KLR)16 Apr 2013distinguished
Cite this brief
#Cite this brief
Caselaw, "Joel Kitango Busienei & 2 others v Richard Kipkemoi Tue & another [2019] KEELC 4419 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4419/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.