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ELCPartially AllowedAppeal from Kisumu East District Land Disputes Tribunal Case No. 63 of 2009; adoption in Chief Magistrate's Court at Winam Case No. 1 of 2011· [2021] KEELC 11 (KLR)

George Otieno Ojany v Mathews Owuor Ojany & 3 others [2021] KEELC 11 (KLR)

Environment and Land Court
1 October 2021
AOANTONY OMBWAYO
3,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land tribunal's subdivision order because tribunals cannot decide who owns registered land—only the High Court or a magistrates' court can.

What this practically means

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Executive summary

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This was an appeal by George Otieno Ojany against the decision of the Kisumu East District Land Disputes Tribunal in Case No. 63 of 2009, which had been adopted as a judgment of the Chief Magistrate's Court at Winam on 3rd February 2011. The Tribunal had ordered parcel KISUMU/WATHOREGO/139 to be subdivided, endorsing a 1/3 portion to Kesia Atieno Osodo and directing the District Surveyor to subdivide the remaining 2/3 equally among Mathews Owuor Ojany, John Ouma Ojany, Agnes Otieno Ojany and George Otieno Ojany, with graveyard portions reserved for the last-born under Luo customary law, and earlier title deeds cancelled. The appellant raised seven grounds, principally that the Tribunal exceeded its mandate by determining title to registered land and ordering subdivision. An application by four interested parties claiming ownership of portions of the parcel was dismissed on 24th October 2018. The court framed a single issue: whether the Tribunal had jurisdiction. Relying on section 3(1) of the repealed Land Disputes Tribunal Act, Peter Atambo Magoya v Stella Osebe, and the Amunavi authority, the court held the dispute related to title to land rather than boundaries, occupation or trespass, so the Tribunal acted beyond its jurisdiction. The appeal was allowed, the Tribunal's award set aside, and the adoption by the Chief Magistrate's Court set aside. Delivery was by electronic mail under COVID-19 directions. No express costs order appears in the judgment.

Key legal issues

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Whether the Land Tribunal had jurisdiction to determine this dispute

Holding

The Tribunal acted beyond its jurisdiction because the dispute related to title to land and its subdivision, not merely to boundaries, occupation or trespass under section 3(1) of the Land Disputes Tribunal Act.

Reasoning

Section 3(1) of the repealed Land Disputes Tribunal Act confined tribunals to division/determination of boundaries, claims to occupy or work land, and trespass. The Tribunal here ordered subdivision of parcel KISUMU/WATHOREGO/139 and cancellation of title deeds, touching title to registered land. Relying on Atambo Magoya and the Amunavi line of authority, the court held such a dispute can only be tried by the High Court or a Resident Magistrate's Court, rendering the award and its adoption a nullity.

p. 6

Legal principles established

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  • Land Disputes Tribunals have no jurisdiction to determine disputes relating to title to registered land; such disputes fall to the High Court or a Resident Magistrate's Court with jurisdiction.

Court orders

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  1. 1.Appeal allowed
  2. 2.The award/decision of the Kisumu East Land Dispute Tribunal set aside
  3. 3.The adoption of the decision of the Tribunal by the Chief Magistrate's Court at Winam in Case No. 1 of 2011 issued on 3rd February 2011 set aside

Authorities

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Legislation

  • Land Disputes Tribunal Act (Cap 303A) (repealed)Section 3(1)
  • Land Disputes Act 1990 (repealed)Section 4

Cases cited (6)

  • Motor Vessel M.V. Lillian's vs Caltex Oil (Kenya) Limited
    (1989) LLR 1653
  • Moses Makokha Osany vs Elekia Mabosio Marenga
    (2018) eKLR
  • Francis Odhiambo Ituru vs Jacton Okula Aduogo
    (2017) eKLR
  • Peter Atambo Magoya v Stella Osebe
    [2019] eKLR
  • Republic -vs- Chairman Siaya District Land Tribunal & Another Ex parte Augustine Ogola Odeny
    [2009] eKLR
  • Jotham Amunavi -vs- Chairman Sabatia Division Land Disputes Tribunal & Another
    CA No. 256 of 2002 at Kisumu
On appeal from
Kisumu East District Land Disputes Tribunal (award adopted by Chief Magistrate's Court at Winam)
Tribunal Case No. 63 of 2009; CMCC No. 1 of 2011
Jurisdiction invoked
Appeal from Land Disputes Tribunal award adopted as judgment of the Chief Magistrate's Court, under the repealed Land Disputes Tribunal Act (Cap 303A)

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, "George Otieno Ojany v Mathews Owuor Ojany & 3 others [2021] KEELC 11 (KLR)", Case Analysis (2021). Appeal from Kisumu East District Land Disputes Tribunal Case No. 63 of 2009; adoption in Chief Magistrate's Court at Winam Case No. 1 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/11/eng@2021-10-01

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