Republic v Margaret Waruguru Ndungu & 3 others Ex Parte William Kiptoo Chepkonga [2020] KEELC 3551 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed a land tribunal's award and a court decree based on it because the tribunal had no power to decide land sale disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the Land Disputes Tribunal had jurisdiction over a dispute requiring enforcement of a contract of sale of registered land by way of subdivision and transfer
The Tribunal acted in excess of jurisdiction; its award was null and void ab initio
Section 3(1) of the Land Disputes Tribunals Act limited the Tribunals to disputes over boundaries, occupation or working of land, and trespass. The Respondents sought enforcement of a sale agreement over registered land, which would affect title and require subdivision and transfer. Such a claim was not within section 3(1) and belonged to the High Court or Resident Magistrate's Court under section 159 of the Registered Land Act. The Tribunal therefore lacked jurisdiction and its decision was void.
Whether the Magistrate's Court could lawfully adopt the Tribunal's void award as its judgment and issue a decree
There was nothing lawful to adopt; the adoption and decree were of no legal effect
Since the Tribunal's award was void ab initio for want of jurisdiction, there was no valid decision the Magistrate's Court could adopt. The purported adoption and resulting decree were a nullity notwithstanding that the adoption formally took place.
Whether the judicial review application was statute barred and defective for want of leave
Leave had been duly granted and the proceedings were commenced within the requisite period; the objections failed
The record showed the applicant applied for leave on 21st September 2005, within two months of the Tribunal's decision of 19th July 2005. Although the matter lay dormant, the applicant withdrew the earlier leave application and obtained leave on 19th October 2011 on a fresh application. The Respondents never challenged that grant of leave by review or appeal, so it remained valid on record and the proceedings were within Order 53 Rule 2.
Whether acquiescence or the parties' failure to object to the Tribunal's jurisdiction cured the jurisdictional defect
Parties cannot confer jurisdiction by consent; lack of jurisdiction is not a curable procedural technicality
Jurisdiction is donated by the Constitution or statute and not by consent of parties. Lack of jurisdiction goes to the substratum of the matter, so a decision made without jurisdiction is a nullity and cannot be excused as a procedural technicality in favour of substantial justice.
Legal principles established
#- A court or tribunal can only exercise jurisdiction donated by the Constitution or written law; parties cannot confer jurisdiction by consent
- A decision made by a body without jurisdiction is a nullity void ab initio and incapable of being adopted by a court
- The Land Disputes Tribunals' jurisdiction did not extend to disputes over title to registered land or claims arising out of contracts of sale
- Judicial review concerns the decision-making process, not the merits of the parties' claims
Court orders
#- 1.An order of certiorari removing into the Court and quashing all the proceedings and the award of the Laikipia Land Dispute Tribunal in respect of plot No.194 Olarabel Scheme ordering subdivision and transfer of three acres to Margaret Waruguru Ndungu and two acres to Margaret Njeri Gichu made on 19th July 2005
- 2.An order of certiorari quashing all proceedings, order and decree in Nanyuki Senior Principal Magistrate's Court Land Case No.2 of 2005, Margaret Njeri Gichu & Another -vs- William K Chepkonga, made on 17th April 2007
- 3.Each party to bear their own costs of the application
- Jurisdiction invoked
- Judicial review under Order 53 of the Civil Procedure Rules; Land Disputes Tribunals Act No. 18 of 1990; Registered Land Act Cap 300
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Margaret Waruguru Ndungu & 3 others Ex Parte William Kiptoo Chepkonga [2020] KEELC 3551 (KLR)", Case Analysis (2020). ELC Misc. Application No. 21 of 2019 (Formerly HC Misc Civil App No. 645 of 2005 (J/R)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3551/eng@2020-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.