Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Misc. Judicial Review Appl. No. 5 of 2018· [2020] KEELC 2073 (KLR)

Republic v Chairman Land Disputes Tribunal at Embu & another; Mathuva Mukemba (Interested Party) Ex-parte Mbaika Kaviti Kyunguti alias Mbaika Kaviti Nyange [2020] KEELC 2073 (KLR)

Environment and Land Court of Kenya
18 June 2020
6,162 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed land dispute tribunals cannot decide ownership of registered land—such decisions are void, even years later.

What this practically means

#

Executive summary

#
This is a first-instance judicial review decision of the Environment and Land Court at Makueni. The Ex-Parte Applicant, substituted by the legal representative of the deceased Kyunguti Muuki, sought an order of certiorari to quash the decision of the Land Disputes Appeals Committee at Embu made on 14 June 2001, which had upheld the Interested Party's claim and ordered the subdivision of registered land parcel Nzavi/Nziu/592. Both the Respondent and the Interested Party raised preliminary objections, principally that the application for leave to seek certiorari was filed far outside the six-month period prescribed by section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules. The court framed three issues: the Committee's jurisdiction, its proper constitution, and timeliness of leave. It held that section 3(1) of the repealed Land Disputes Tribunals Act did not confer jurisdiction over claims of ownership or contracts of sale of registered land, so the Committee's award directing subdivision of the registered parcel was ultra vires and null and void ab initio. It further found that the Committee sat as a panel of only two members besides the chairman, offending section 9. On limitation, following Stephen Kibowen, the court held that time cannot run against a nullity, so the objection based on the six-month period failed. The court allowed the notice of motion, quashed the Committee's decision of 14 June 2001, and granted costs.

Key legal issues

#
01

Whether the Land Disputes Appeals Committee had jurisdiction over a dispute involving registered land and a contract of sale of land

Holding

The Committee acted without jurisdiction; its decision ordering subdivision of registered land was ultra vires and a nullity.

Reasoning

Section 3(1) of the repealed Land Disputes Tribunals Act limited tribunals to boundary disputes, claims to occupy or work land, and trespass. The dispute before the Committee concerned a sale transaction and ownership of registered land, which is the sole preserve of the courts. Relying on the Court of Appeal authorities cited, the court held the award went beyond the statutory jurisdiction and was a nullity ab initio.

p. 7
02

Whether the Appeals Committee panel was properly constituted

Holding

The Committee was improperly constituted because it sat as a panel of three including the chairman but with only two members, contrary to section 9 of the Act.

Reasoning

Section 9 required the Appeals Committee to consist of a chairman and not less than five persons, sitting in a panel of three members for hearings. The record showed a chairman and two members, offending the mandatory provisions. The court agreed the Committee was incapable of passing a binding decision.

p. 7
03

Whether the judicial review application was filed out of the six-month limitation period under section 9(3) of the Law Reform Act

Holding

The limitation period did not bar the application because the impugned decision was a nullity made without jurisdiction, and time could not run against a nullity.

Reasoning

Although the decision was dated 14 June 2001 and leave was sought in 2004, the court, following Stephen Kibowen vs. The Chief Magistrate's Court Nakuru, held that where the decision challenged is a nullity amounting to nothingness, time cannot run against it. The limitation objection therefore failed.

p. 8

Legal principles established

#
  • The jurisdiction of the Land Disputes Tribunal and Appeals Committee did not extend to claims of ownership of, or contracts of sale of, registered land.
  • A decision of a tribunal made without jurisdiction is a nullity against which the six-month certiorari limitation period does not run.
  • An Appeals Committee hearing conducted by a panel of fewer than three members is improperly constituted.

Court orders

#
  1. 1.The decision of the Land Disputes Appeals Committee made on 14/6/2001 is brought up and quashed
  2. 2.Costs are granted to the Ex-Parte Applicant

Authorities

#

Legislation

  • Civil Procedure RulesOrder LIII Rules 3 and 4
  • Civil Procedure RulesOrder 53 Rule 2
  • Law Reform Act (Chapter 26, Laws of Kenya)Section 9(3)
  • Land Disputes Tribunal Act (Chapter 303, Laws of Kenya, repealed)Sections 3(1), 8(1) and 9
  • Registered Land Act (Chapter 300, Laws of Kenya, repealed)
  • Constitution of Kenya, 2010Articles 159 and 50(1)
  • Labour Relations Act 2007Section 3(b)
  • National Police Service ActSection 47(3)

Cases cited (13)

  • M'Marete vs. Republic & 3 others
    [2004] eKLR
  • Republic vs. Chairman Meru Central Land Disputes Tribunal & 4 Others
    [2018] eKLR
  • John Kasimu Kilatya vs. Chairman Machakos Land Disputes Tribunal & 2 others
    [2017] eKLR
  • The Owners of Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Joseph Njuguna Mwaura and 2 others vs Republic
    Nairobi Criminal Appeal No. 5 of 2008
  • Registrar of Trade Unions vs Nick Njuguna & 4 others
    Civil Appeal No 251 of 2014
  • Peter Mmini Shaka vs. James Shaka Martin
    [2006] eKLR
  • Republic vs. Chairman Kandara District Land Disputes Tribunal & Another Interested Party John Gachoka Charagu Exparte Godfrey Mungai
    [2013] eKLR
  • Pelesia Atieno Onyango vs. Republic & Another
    [2016] eKLR
  • Republic –vs- Funyula Land Disputes Tribunal & Another
    [2014] eKLR
  • Peter Atambo Magoya vs. Stella Osebe
    [2019] eKLR
  • Ako vs. Special District Commissioner & another
    [1989] eKLR
  • Stephen Kibowen vs. The Chief Magistrate's Court Nakuru and 2 Others
    Civil Appeal No. 211 of 2013 (unreported)
Jurisdiction invoked
Judicial review jurisdiction of the High Court under Order LIII Rules 3 and 4 of the Civil Procedure Rules and the Law Reform Act (Cap 26)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Chairman Land Disputes Tribunal at Embu & another; Mathuva Mukemba (Interested Party) Ex-parte Mbaika Kaviti Kyunguti alias Mbaika Kaviti Nyange [2020] KEELC 2073 (KLR)", Case Analysis (2020). ELC Misc. Judicial Review Appl. No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2073/eng@2020-06-18

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