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ELCAllowedNot stated in the judgment as provided· [2019] KEELC 4835 (KLR)

Jamleck Muthike Kirabui v Eunice Wambui Ngondi & another [2019] KEELC 4835 (KLR)

Environment and Land Court
25 January 2019
ECE.C. Cherono
1,183 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court voided a land tribunal's award because tribunals cannot decide who owns registered land—only courts can.

What this practically means

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Executive summary

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The appellant appealed against the award of the Central Provincial Land Disputes Appeals Committee issued on 21st July 1999, on grounds that the Committee exceeded its jurisdiction under Section 3 of the Land Disputes Tribunal Act, granted relief not specifically claimed, and failed to consider the respondents' lack of locus standi to sue for the benefit of a deceased person's estate. The dispute concerned Mutira/Kangai/130 in the Mwea National Irrigation Settlement Scheme; the appellant claimed ownership through his father, while the respondents, widows of the late Peter Ngondu Kirabui, claimed a right to occupy the suit land as belonging to their deceased husband. The respondents also argued the appeal was res judicata, having been determined in ELCA No. 52 of 2001 (Kerugoya). The court first addressed res judicata, holding that the earlier case concerned only an application for stay of the award pending appeal in HCC No. 83 of 1999 (Nyeri), so the matters in issue were not the same and the doctrine did not apply. On jurisdiction, applying Owners of Motor Vessel 'Lillian S' and Court of Appeal authority in Lelei and Kihu, the court held that Section 3(1) of the Land Disputes Tribunal Act does not confer power to determine title to or ownership of registered land. The Committee had cancelled the appellant's title and ordered a new title issued to the respondents, exceeding its mandate; its decision was therefore ultra vires and a nullity. The appeal was allowed, the Committee's award and the Wanguru Resident Magistrate's orders of 24th June 2008 in Arbitration Case No. 24 of 1997 were set aside, and the appellant was awarded the costs of the appeal.

Key legal issues

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01

Res judicata

Holding

The appeal is not res judicata because the prior ELCA No. 52 of 2001 proceedings concerned an application for stay, not the issues in this appeal

Reasoning

The court applied Section 7 of the Civil Procedure Act, identifying three conditions: a former suit between the same parties, the matter directly and substantially in issue, and a final decision by a competent court. The earlier ELCA No. 52 of 2001 (Kerugoya) dealt only with an application for stay of the award pending appeal in HCC No. 83 of 1999 (Nyeri). The matters in issue were therefore not the same, and the doctrine did not apply.

p. 2
02

Jurisdiction of the Land Disputes Tribunal over ownership of registered land

Holding

The Tribunal and Appeals Committee acted ultra vires in cancelling the appellant's title and ordering a new title to the respondents, since determination of title to registered land falls outside Section 3(1) of the Land Disputes Tribunal Act

Reasoning

Relying on Owners of Motor Vessel 'Lillian S' and Court of Appeal decisions in Lelei and Kihu, the court held that Section 3(1) confines tribunals to boundary disputes, claims to occupy or work land, and trespass. The Committee cancelled the appellant's title and ordered issuance of a new title to the respondents - a determination of ownership of registered land. A decision made without jurisdiction is a nullity, so the award and subsequent magistrate's orders were set aside.

p. 2

Legal principles established

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  • A tribunal or court that exercises a jurisdiction the law does not donate renders its proceedings and any resulting award a nullity
  • Section 3(1) of the Land Disputes Tribunal Act does not confer jurisdiction to determine title to or ownership of registered land

Court orders

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  1. 1.The appeal is allowed
  2. 2.The award of the Central Provincial Land Disputes Appeals Committee made on 21st July 1999 is set aside
  3. 3.The subsequent orders issued by the Wanguru Resident Magistrate on 24th June 2008 in Arbitration Case No. 24 of 1997 are set aside
  4. 4.The appellant shall have the costs of the appeal

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 3(1)
  • Civil Procedure ActSection 7

Cases cited (3)

  • Owners of Motor Vessel "Lillian S" vs Caltex Oil Kenya Ltd
    (1989) K.L.R 1
  • Joseph Malakwen Lelei & Another vs Rift Valley Land Disputes Appeals Committee & 2 others
    (2014) e K.L.R
  • Dominica Wamuyu Kihu vs Johana Ndura Wakaritu
    (2012) e K.L.R
On appeal from
Central Provincial Land Disputes Appeals Committee (award adopted by Wanguru Resident Magistrate)
Arbitration Case No. 24 of 1997
Jurisdiction invoked
Appeal against award of the Provincial Land Disputes Appeals Committee under the Land Disputes Tribunal Act; provisions of Section 3(1) of that Act and Section 7 of the Civil Procedure Act considered

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, "Jamleck Muthike Kirabui v Eunice Wambui Ngondi & another [2019] KEELC 4835 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4835/eng@2019-01-25

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