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ELCAllowedNot stated in the excerpt (Kisii High Court; suit over land parcel MAJOGE KANYIMBO/385)· [2020] KEELC 1205 (KLR)

Daniel Nyabaro Omwega & another v Kennedy Omwega Magachi [2020] KEELC 1205 (KLR)

Environment and Land Court (High Court), Kisii
29 September 2020
JOJ.M. ONYANGO
1,262 words in judgment
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The bottom line

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The Kisii Environment and Land Court declared a Land Disputes Tribunal award over registered land void because the Tribunal had no power to decide it.

What this practically means

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Executive summary

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The Plaintiffs, registered owners of land parcel MAJOGE KANYIMBO/385 through transfer by transmission pursuant to Kisii HC Succession Cause No. 366 of 1993, sued the Defendant seeking a declaration that an award of the Ogembo Land Disputes Tribunal (Case No. 9 of 2010) in the Defendant's favour, and its adoption as a judgment of the Ogembo Senior Principal Magistrate's Court in Miscellaneous Civil Application No. 26 of 2011, were null and void for want of jurisdiction. The Defendant had earlier sued over the same land in Kisii HCCC No. 88 of 1993, which was dismissed on 9th September 1998, before turning to the Tribunal. The suit proceeded ex-parte on 25th February 2020 despite service, the Defendant having filed a defence denying the claim. The court framed a single issue: whether the Plaintiffs were entitled to the reliefs sought. Relying on Section 47 of the Evidence Act, Order 3 Rule 9 of the Civil Procedure Rules, and the Court of Appeal decision in Joana Nyokwoyo Buti v Walter Rasugu Omariba, the court held that a declaratory order could nullify a tribunal award made without jurisdiction, since such a decision is a nullity notwithstanding its merger in a magistrate's court judgment or the lapse of time for judicial review. Holding that the Plaintiffs had proved their case on a balance of probabilities, the court entered judgment for the Plaintiffs, declared the Tribunal award and its adoption null and void for lack of jurisdiction, and ordered the Defendant to bear the costs of the suit. Judgment was delivered at Kisii on 29th September 2020 by J.M. Onyango, Judge.

Key legal issues

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01

Whether the Plaintiffs were entitled to a declaration that the Ogembo Land Disputes Tribunal award and its adoption as a judgment were null and void for lack of jurisdiction

Holding

The Plaintiffs proved their case on a balance of probabilities; the award and its adoption were null and void for lack of jurisdiction.

Reasoning

The court relied on Section 47 of the Evidence Act permitting a party to show a judgment was delivered by an incompetent court, and Order 3 Rule 9 of the Civil Procedure Rules permitting purely declaratory suits. Following the Court of Appeal in Joana Nyokwoyo Buti v Walter Rasugu Omariba, a declaration may issue nullifying a tribunal decision made without jurisdiction, since such a decision is a nullity even after merger in a magistrate's court judgment.

p. 2
02

Whether a Land Disputes Tribunal has jurisdiction to adjudicate over registered land

Holding

It did not; the Tribunal's award directing sub-division and transfer of registered land exceeded its jurisdiction.

Reasoning

Counsel for the Plaintiffs submitted that the Land Disputes Tribunal had no jurisdiction to deal with registered land, and the court accepted that a tribunal without jurisdiction cannot make a valid award. The Tribunal had directed that the suit parcel be sub-divided and a portion transferred to the Defendant, a matter touching registered land beyond its statutory competence, rendering the award and its adoption a nullity.

p. 1

Legal principles established

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  • A judgment or decree may be impeached in fresh proceedings where it was delivered by a court not competent to deliver it or was obtained by fraud.
  • A court may make a binding declaratory order nullifying a decision founded on an award by a Tribunal that had no jurisdiction.

Court orders

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  1. 1.A declaration is hereby issued that both the award by the Ogembo Land Disputes Tribunal and the adoption of the same by Ogembo Senior Principal Magistrate's Court are null and void for lack of jurisdiction.
  2. 2.The costs of this suit shall be borne by the Defendant.

Authorities

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Legislation

  • Evidence ActSection 47
  • Civil Procedure RulesOrder 3 Rule 9
  • Land Disputes Tribunal ActSection 8(1)

Cases cited (3)

  • Joana Nyokwoyo Buti v Walter Rasugu Omariba
    (2011) eKLR
  • Jonesco v Beard
    (1930) AC 293
  • Kuwait Airways Corporation v Iraqi Airways Co & Another (No. 2)
    [2001] 1 WLR 429
Jurisdiction invoked
Original civil jurisdiction of the High Court under the Civil Procedure Act and Evidence Act (declaratory relief impeaching a judgment/award for lack of jurisdiction, Section 47 Evidence Act)

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, "Daniel Nyabaro Omwega & another v Kennedy Omwega Magachi [2020] KEELC 1205 (KLR)", Case Analysis (2020). Not stated in the excerpt (Kisii High Court; suit over land parcel MAJOGE KANYIMBO/385). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1205/eng@2020-09-29

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