Alfred Ireri Nderi v Stephen Njeru Joel [2021] KEELC 796 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld an eviction, ruling that decades-old tribunal decisions made without jurisdiction are nullities and cannot be revived.
What this practically means
#Executive summary
#Key legal issues
#Res judicata of the appellant's counter-claim
The counter-claim was res judicata as it re-litigated issues determined in Civil Suit No. 66 of 1987; the trust issue ought to have been raised in the first suit.
The court compared the amended defence and counter-claim with Civil Suit No. 66 of 1987 and found the same property, parties, issues and evidence. The trust issue appearing only in the counter-claim was legal ingenuity to evade res judicata, and no trust could arise from the void tribunal process.
Validity of the Land Disputes Tribunal award and consequential transfer documents
The tribunal lacked jurisdiction to determine ownership; its award was set aside and all subsequent processes, including Land Control Board consents and transfer forms, were nullities of no legal consequence.
The tribunal's jurisdiction under Section 3(1) of the repealed Land Disputes Tribunal Act covered division/boundaries, claim to occupy or work land, and trespass - not ownership. The tribunal divested ownership without mandate, so its decision was futile and any transfer documents founded on it collapsed.
Limitation of actions
Neither party was caught by limitation because continuous litigation stopped time from running for both; in any event ownership was only legally settled in 2002 and the respondent's suit was filed the same year.
The respondent's suit, though numbered as 2013, was actually filed on 8/8/2002 vide a plaint dated 6/8/2002, following the setting aside of the tribunal award. The appellant's adverse possession argument failed because his own litigation over ownership meant the respondent's title was not yet certain.
Application of Section 3A of the Civil Procedure Act
Section 3A could not be invoked to assist the appellant, who was abusing the court process.
The appellant lost in 1987, lost his appeal, then took the same dispute to a tribunal without jurisdiction and now sought to give a false cloak of legality to that void process. Inherent powers exist for the ends of justice and to prevent abuse of process, not to circumvent clear law.
Whether the trial magistrate ignored the history and documents of the case
The trial magistrate was alive to the documents and history, having listed them, and expressly considered all evidence and submissions; the first appellate court disagreed with the appellant on this ground.
The trial court's judgment set out the documents of both sides and stated it had carefully considered all evidence and submissions. That was not an idle averment, so the ground of appeal failed.
Legal principles established
#- When parties are litigating, litigation stops time from running for both parties for purposes of limitation, whether they institute or defend the suit.
- A judgment or order of court cannot be compromised by implication or inference; it must be expressly challenged.
- Land Disputes Tribunals under the repealed Act had no jurisdiction over ownership of land; orders made without jurisdiction are nullities.
- An act that is void is in law a nullity and every proceeding founded on it is equally bad and incurably bad.
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
- On appeal from
- Chief Magistrate's Court at Embu
- Embu CMCC No. 83 of 2013
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Ireri Nderi v Stephen Njeru Joel [2021] KEELC 796 (KLR)", Case Analysis (2021). E.L.C. Appeal No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/796/eng@2021-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.