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ELCPartially AllowedNot stated in the judgment as provided (Environment and Land Court appeal from Migori Chief Magistrate's Court Land and Environment Case No. 2 of 2018)· [2021] KEELC 1767 (KLR)

Charles Onyango Menya v Kenya Forest Service [2021] KEELC 1767 (KLR)

Environment and Land Court of Kenya
29 September 2021
GOG. M. A. Ongondo
2,916 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Homa Bay against the judgment of Honourable M. Obiero PM in Migori Chief Magistrate's Court Land and Environment Case No. 2 of 2018, in which the appellant's suit was struck out for want of jurisdiction and the respondent's counterclaim dismissed, with each party bearing their own costs. The appellant, registered proprietor of LR Suna East/Kakrao/842, claimed the respondent trespassed onto and excised about three acres of his land adjoining its parcel LR Suna East/Kakrao/841, alleged to be part of Magina Forest. The respondent asserted the disputed portion was handed to the Forest Department in 1983 and gazetted as Magina Forest. The trial court held it lacked jurisdiction under section 18(2) of the Land Registration Act because the boundary had not been determined by the Land Registrar, as had been contemplated by a Land Disputes Tribunal award and a Land Registrar's report of 2nd September 2014, and further held the matter res judicata. Ongondo J agreed that the boundary dispute had not been resolved by the Land Registrar as required by sections 18 and 19 of the LRA, so the trial court correctly found it had no jurisdiction. However, having found no jurisdiction, the trial magistrate had no power to take one more step and erred in proceeding to determine the other issues. The appeal was held partially merited and the court ordered a new trial before a different magistrate on priority basis, with the Land Registrar's report to be availed, and directed each party to bear their own costs of the appeal and the court below.

Key legal issues

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01

Whether the trial court had jurisdiction over the boundary dispute

Holding

The trial magistrate correctly found he had no jurisdiction because the boundary had not been determined by the Land Registrar as required by sections 18 and 19 of the Land Registration Act

Reasoning

The Land Disputes Tribunal award directed the parties to the District Land Registrar and Surveyor for boundary determination. The Land Registrar's report directed that the boundary dispute lodged before him proceed to resolution, but there was no evidence that he proceeded and made a determination. The appellant himself conceded the tribunal recommendation was never implemented. Section 18(2) of the LRA bars court proceedings on boundaries unless determined under that section, so the trial court lacked jurisdiction.

p. 4
02

Whether the trial magistrate could determine the remaining issues after finding no jurisdiction

Holding

Having found no jurisdiction, the magistrate had no power to take one more step; his determinations on issues (ii) to (v) were a nullity and the appeal succeeds to that extent

Reasoning

Relying on Owners of Motor Vessel Lillian 'S', once the magistrate found he lacked jurisdiction he could not proceed to dismiss the counterclaim and make findings on the merits. The appellate court found him at fault for determining issues (ii) to (v), making the appeal partially merited and justifying an order for a new trial before a different magistrate.

p. 4

Legal principles established

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  • A court without jurisdiction has no power to take any further step, including determining other issues in the suit
  • Where boundaries of registered land are in dispute, the Land Registrar must first determine the boundary under sections 18 and 19 of the Land Registration Act before the court entertains the suit

Court orders

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  1. 1.The appeal is partially allowed
  2. 2.A new trial of the suit before a different magistrate in Migori Chief Magistrate's Court on priority basis, with the Land Registrar's report to be availed at the trial
  3. 3.Each party to bear their own costs of the appeal and the court below

Authorities

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Legislation

  • Environment and Land Court Actsections 26(3), 26(4), 19
  • Civil Procedure Act, Chapter 21 Laws of Kenyasections 1A, 1B, 3, 3A, 78(1)(e), 11, 18, 27(1)
  • Land Registration Actsections 18(2), 19
  • Magistrates' Courts Act No. 26 of 2015section 9(a)
  • Constitution of Kenya 2010Article 162(2)(b); Article 7(3)(b)

Cases cited (11)

  • Samuel Kamau Macharia & Anor v Kenya Commercial Bank Ltd & 2 others
    2012 eKLR
  • Provincial Insurance Co. Ltd v Mordecai Mwanga Nandwa
    Kisumu CA CA No. 179 of 1995
  • James Muniu Mucheru v National Bank of Kenya Ltd
    2019 eKLR
  • Republic v Capital Markets Authority & 2 others ex-parte Fredrick Tshofa Mueni
    2017 eKLR
  • Peterson v Sunday Post
    (1958) EA 424
  • Selle v Associated Motor Boat Co. Ltd
    (1968) EA 123
  • Samwel Kamau Macharia and another v Kenya Commercial Bank Ltd and others
    (2012) eKLR
  • Republic v Karisa Chengo and 2 others
    (2017) eKLR
  • Andrew Marigwa v Josephat Ondieki Kebati
    (2017) eKLR
  • Registered Trustees Legio Maria Africa Church Mission v Simeon Nyamweya Obwocha
    (2018) eKLR
  • Owners of Motor Vessel Lillian 'S' v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
On appeal from
Migori Chief Magistrate's Court (Land and Environment)
Migori CM Land and Environment Case No. 2 of 2018
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010; section 26(4) of the Environment and Land Court Act; sections 1A, 1B, 3, 3A and 78(1)(e) of the Civil Procedure Act; section 19 of the ELC Act

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, "Charles Onyango Menya v Kenya Forest Service [2021] KEELC 1767 (KLR)", Case Analysis (2021). Not stated in the judgment as provided (Environment and Land Court appeal from Migori Chief Magistrate's Court Land and Environment Case No. 2 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1767/eng@2021-09-29

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