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ELCDismissedNot stated in extract (Elgeyo Marakwet ELC suit; plaint dated 20th December 2011, amended 23rd October 2015)· [2020] KEELC 3087 (KLR)

Sally Jemeli Korir & Another v William Suter & 2 others [2020] KEELC 3087 (KLR)

Environment and Land Court
6 March 2020
MOM. A. Odeny
5,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that old Land Disputes Tribunal awards can only be challenged through appeals or judicial review, not fresh lawsuits.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Yusuf Kipkorir Chepkeitany, sued for declarations that they are the absolute owners of parcels Sergoit/Koiwaptaoi Block 12(Katalel)/557 and 542, a permanent injunction against trespass, damages for wrongful claim, cancellation of the 1st Defendant's registration, and a declaration that the Elgeyo Marakwet Land Disputes Tribunal's award as adopted in Iten Award Case No.3 of 2005 was null and void for lack of jurisdiction. The plaintiffs claimed their father purchased 26 acres from the Kapsoen/Kaptere youth group and took possession, while the 1st Defendant claimed title through an exchange with Cheberen Primary School which had obtained 15 acres under the tribunal award. The Land Registrar confirmed the 1st Defendant was registered in 2012 on the strength of the members register, without evidence of clearance or a transfer. The parties filed competing submissions on fraud, indefeasibility of title under sections 24, 25 and 26 of the Land Registration Act, and the proper forum for challenging the tribunal award. The court framed the forum question as the threshold issue and answered it in the negative: an aggrieved party must appeal to the Appeals Committee under section 8(1) of the repealed Land Disputes Tribunals Act or pursue judicial review in the High Court, and a declaratory suit is not contemplated by that Act. The Court of Appeal decision in Florence Nyaboke Machani was followed. Section 23(3) of the Interpretation and General Provisions Act preserves the award and the adopting judgment, which remain undisturbed and enforceable. The suit was accordingly dismissed with costs to the defendants.

Key legal issues

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01

Proper forum for challenging a Land Disputes Tribunal award

Holding

The proper forum is an appeal to the Appeals Committee under section 8(1) of the repealed Act or judicial review in the High Court; a declaratory suit in the ELC is not a permissible avenue, and the suit is therefore misconceived

Reasoning

The repealed Land Disputes Tribunals Act set out specific procedures for aggrieved parties: appeal within 30 days to the Appeals Committee and thereafter to the High Court on a point of law within 60 days. There was no evidence the plaintiffs followed these procedures. The award was adopted as a judgment of the Iten court which remains undisturbed. Citing Court of Appeal authority, the court held that a declaratory suit is not contemplated by the Act and cannot circumvent the appeal system.

p. 7
02

Legal status of tribunal awards and adopting judgments after repeal of the Land Disputes Tribunals Act

Holding

They remain valid judgments and binding decrees capable of execution by virtue of section 23(3) of the Interpretation and General Provisions Act

Reasoning

Section 23(3)(e) of Cap 2 provides that repeal of a written law does not affect rights, obligations, proceedings or remedies accrued under it. Consequently, awards of the defunct Land Disputes Tribunals and judgments adopted by magistrates' courts under the repealed Act remain valid and their decrees remain executable. The Iten Award No.3 of 2005 has not been set aside or appealed against, and therefore binds the parties.

p. 7
03

Whether the 1st Defendant's title was fraudulently acquired

Holding

Not determined, as the threshold issue of forum was resolved against the plaintiffs

Reasoning

The court framed the forum question as a threshold issue and answered it in the negative, holding it unnecessary to consider the merits of the fraud allegation or the competing claims of ownership, adverse possession and indefeasibility of title raised in the parties' submissions.

p. 6

Legal principles established

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  • A party aggrieved by a Land Disputes Tribunal award must challenge it by appeal to the Appeals Committee or by judicial review in the High Court, and cannot do so by a declaratory suit
  • Section 23(3) of the Interpretation and General Provisions Act preserves decisions, awards and adopted judgments of defunct Land Disputes Tribunals as valid and executable instruments
  • A valid judgment of a court, unless overturned on appeal, remains enforceable irrespective of questions as to the jurisdiction of the tribunal whose award it adopted

Court orders

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  1. 1.The plaintiff's case is dismissed
  2. 2.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) and (b)
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
  • Land Disputes Tribunal Act (1990) (Repealed)Sections 3, 8(1) and 8(9)
  • Evidence Act, Cap 80Section 107
  • Interpretation and General Provisions Act (Cap 2)Section 23(3)
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Constitution of KenyaArticle 159

Cases cited (10)

  • Esther Ndegi Njiru and another v Leornard Gatei
    [2014] eKLR
  • Musa Kiptai Mulwo v Ngobitwa Farmers Co-operative Society Limited and 3 others
    [2019] eKLR (Eldoret ELC Case No.29 of 2014)
  • Paul Muraya Kaguri v Simon Mbaria Muchunu
    [2015] eKLR
  • James Njuguna Chui v John Njogu Kimani
    [2017] eKLR
  • Arthi Highway Developers Ltd v West End Butchery Limited and Others
    Civil Appeal No.246 of 2013
  • Dr. Joseph Arap Ngok v Justice Moijo Ole Keiwua & 5 Others
    Civil Appeal No. Nai 60 of 1997
  • Mbaki & Others v Macharia & Another
    [2005] 2 E.A. 206
  • Lilian Barng'etuny v Nandi Land Registrar & others
    Eldoret E&L Pet No. 3 of 2016
  • Republic v Marakwet District Land Disputes Tribunal & 6 others Ex-Parte Shaban Clan & 3 others
    [2016] eKLR
  • Florence Nyaboke Machani v Mogere Amosi Ombui & 2 Others
    Civil Appeal No.184 of 2011
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in the extract; suit commenced by plaint)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Sally Jemeli Korir & Another v William Suter & 2 others [2020] KEELC 3087 (KLR)", Case Analysis (2020). Not stated in extract (Elgeyo Marakwet ELC suit; plaint dated 20th December 2011, amended 23rd October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3087/eng@2020-03-06

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