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ELCPartially AllowedMisc. Appeal No. 16 of 2017· [2020] KEELC 2545 (KLR)

Joel Kithokoi Muthiani v Joseph Matheka Kithokoi; Ruth Ngovu Kimale (Interested Party) [2020] KEELC 2545 (KLR)

Environment and Land Court of Kenya
21 May 2020
CMC.G. Mbogo
2,833 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that Land Disputes Tribunals could not order sharing of registered land—only its use—reinstating the original tribunal award.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Makueni from the judgment of the Embu Provincial Land Disputes Tribunal Appeals Board/Committee in Appeal Case No.42 of 2001. The underlying dispute arose from Makueni Land Dispute No.16 of 2000, in which the Respondent, a son of the Appellant's late first wife, claimed the right to use the Appellant's registered land, Makueni/Mubau/271, under Kamba customary law. The District Land Disputes Tribunal ordered the Appellant to allow the sons of the first wife use of the land; on appeal, the Provincial Appeals Committee dismissed the Appellant's appeal, upheld the Tribunal's award, and further ordered that the sons of the first wife be included in the sharing of the land. The Appellant appealed on three grounds, principally that the Appeals Committee lacked jurisdiction under section 3(1) of the repealed Land Disputes Tribunal Act and that it had determined an issue not before it. The Respondent contended that the claim fell within section 3(1) as a claim to occupy or work land. The court framed a single issue: whether the Appeals Committee had jurisdiction. Applying Joseph Malakwen Lelei v Rift Valley Land Disputes Appeals Committee, the court held that since section 3(1) did not include 'share', the Committee's order for sharing of registered land was made without jurisdiction. The court allowed the appeal, set aside the Appeals Committee's judgment, reinstated the District Tribunal's award as adopted by the Magistrate's Court, and ordered each party to bear his own costs in view of the father-son relationship.

Key legal issues

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01

Whether the Provincial Land Disputes Tribunal Appeals Committee had jurisdiction to order sharing of registered land

Holding

The Appeals Committee acted without jurisdiction because the word 'share' was not among the matters listed in section 3(1) of the Land Disputes Tribunal Act

Reasoning

The District Tribunal only ordered that the sons of the first wife be allowed use of the land; the Appeals Committee went further and ordered that the sons be included in the sharing of the land. 'Share' was not included in section 3(1) of the Act, which covers division/determination of boundaries, claims to occupy or work land, and trespass. Ordering sharing amounted to a determination of ownership of registered land, beyond the Tribunal's limited jurisdiction.

p. 4

Legal principles established

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  • The Land Disputes Tribunals had no jurisdiction under section 3(1) of the Land Disputes Tribunal Act to order sharing of registered land

Court orders

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  1. 1.The judgement of the Provincial Land Disputes Tribunal Appeal Board in appeal case number 42/2001 is set aside
  2. 2.Substituted with the award of Makueni District Lands Disputes Tribunal delivered on 14th March, 2001 and adopted as the judgement of the Court on 19th March, 2002 in Resident Magistrate's Court at Makueni in LDTC case No.4 of 2001
  3. 3.Each party to bear his own costs

Authorities

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Legislation

  • Land Disputes Tribunal Act, 1990 (repealed)section 3(1)
  • Land Disputes Tribunal Act, 1990 (repealed)section 7(1)
  • Land Disputes Tribunal Act, 1990 (repealed)section 7(2)
  • Land Disputes Tribunal Act, 1990 (repealed)section 8(1)
  • Land Disputes Tribunal Act, 1990 (repealed)section 8(8)
  • Land Disputes Tribunal Act, 1990 (repealed)section 8(9)
  • Land Disputes Tribunal Act, 1990 (repealed)section 8(10)
  • Evidence Actsection 143
  • Civil Procedure Actenforcement of decrees

Cases cited (2)

  • Joseph Malakwen Lelei and another vs. Rift Valley Land Disputes Appeals Committee & 2 others
    [2014] eKLR
  • Republic vs. Chairman Kiharu Land Disputes Tribunal
    [2007] eKLR
On appeal from
Embu Provincial Land Dispute Tribunal Appeals Board/Committee
Appeal Case No. 42 of 2001
Jurisdiction invoked
Section 8(9) of the Land Disputes Tribunal Act, 1990 (appeal to the High Court on a point of law)

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, "Joel Kithokoi Muthiani v Joseph Matheka Kithokoi; Ruth Ngovu Kimale (Interested Party) [2020] KEELC 2545 (KLR)", Case Analysis (2020). Misc. Appeal No. 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2545/eng@2020-05-21

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