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ELCPartially AllowedNot stated in the extract (Malindi Environment and Land Court suit; amended Plaint dated 12th November 2018)· [2020] KEELC 1600 (KLR)

Nicholas Kombe Pembe v Kenga Kombe & 3 others [2020] KEELC 1600 (KLR)

Environment and Land Court of Kenya
24 July 2020
JOJ. O. Olola
2,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles created through a Tribunal award because Tribunals never had power to decide who owns registered land.

What this practically means

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Executive summary

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The Plaintiff sued for cancellation of the title deed issued in place of Kaloleni/Vishakani/538, registration of the property in his name, vacation of the property by the Defendants' beneficiaries, damages and costs. He averred that the parcel was registered to his father, Pembe Murogo Kithi, in 1981; that after the father's death in 1985, Kenga Kombe and Kaleso Kombe fraudulently posed as heirs and obtained an award in Land Award Case No. 13 of 1996 leading to sub-division into Plot Nos. 876, 877 and 878, with Plot 878 registered to Kaleso Kombe. The 1st Defendant, sued as administrator of Kenga Kombe's estate, defended the Tribunal proceedings and counterclaimed for possession of Plot 877, which he said the Plaintiff occupied illegally. The court found it undisputed that the original parcel belonged to the Plaintiff's father and that the confirmed grant issued to the Plaintiff in 2004. It held that under the Land Disputes Tribunals Act the Tribunal had jurisdiction only over boundary disputes, claims to occupy or work land, and trespass, not ownership or title; the purported award sub-dividing registered land was therefore made without jurisdiction and could not stand. Finding the Plaintiff's testimony consistent and unchallenged, the court held his case proved on a balance of probabilities but declined damages. Judgment was entered for the Plaintiff as prayed in the Amended Plaint, the Counterclaim was dismissed, and the Plaintiff was awarded costs of both the suit and the Counterclaim.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over title to registered land

Holding

The Tribunal's award sub-dividing the registered parcel was made without jurisdiction and cannot stand

Reasoning

Section 3(1) of the Land Disputes Tribunals Act confined tribunals to disputes over boundaries, claims to occupy or work land, and trespass. Ownership and cancellation of registered title fell outside that mandate. A purported award of parcels already registered in the deceased proprietor's name was therefore ultra vires and a nullity, incapable of supporting the subsequent registrations of Plot Nos. 876, 877 and 878.

p. 3
02

Whether the Plaintiff proved his claim on a balance of probabilities

Holding

The Plaintiff's testimony was consistent and unchallenged; he proved his case and was entitled to judgment as prayed

Reasoning

The Plaintiff was the sole witness and his account—that his father was registered proprietor, died intestate, and that the Defendants' predecessors fraudulently procured a Tribunal award leading to sub-division and registration of Plot 878—was neither controverted by evidence nor seriously challenged at trial. The 1st Defendant's Counterclaim for Plot 877, founded on the same defective award, necessarily fell with it.

p. 3

Legal principles established

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  • Land Disputes Tribunals established under the Land Disputes Tribunals Act, 1990 had no jurisdiction to determine ownership or title to registered land; an award exceeding that jurisdiction is a nullity

Court orders

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  1. 1.The 1st Defendant's Counterclaim is dismissed
  2. 2.Judgment entered for the Plaintiff as prayed in the Amended Plaint dated 12th November 2018
  3. 3.Plaintiff awarded costs of the suit and of the Counterclaim

Authorities

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Legislation

  • Land Disputes Tribunals Act, 1990 (now repealed)Section 3(1)
  • Land Disputes Tribunals Act, 1990 (now repealed)Section 4
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Nicholas Kombe Pembe v Kenga Kombe & 3 others [2020] KEELC 1600 (KLR)", Case Analysis (2020). Not stated in the extract (Malindi Environment and Land Court suit; amended Plaint dated 12th November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1600/eng@2020-07-24

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