Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Appeal arising from PMCC No. 47 of 2017 (Tigania)· [2021] KEELC 2293 (KLR)

David Mwithirwa M’Ibaya v Geoffrey Kibaara M’Ibaya [2021] KEELC 2293 (KLR)

Environment and Land Court
28 July 2021
4,991 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

If your land sits in an adjudication section in Kenya, courts cannot hear your dispute until you first use the statutory objection and appeal process.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Garissa against the ruling of Hon. Sogomo G., Principal Magistrate, delivered on 20 December 2018 in PMCC No. 47 of 2017 (Tigania), by which the appellant's suit - seeking a declaration that the respondent holds land parcels Nos. 1838, 4301 and 4403 in Kianjai Adjudication Section in trust for him, and rectification of the register - was struck out for want of jurisdiction. The appellant advanced thirteen grounds, arguing principally that he had obtained the Land Adjudication Officer's consent under Section 30 of the Land Adjudication Act, which conferred jurisdiction, and that the costs award against him was wrong since the parties are relatives. The respondent countered that the consent does not bypass the dispute resolution mechanisms under the Land Consolidation Act (Cap. 283) and the Land Adjudication Act (Cap. 284), and that a transfer order cannot confer jurisdiction where none exists. The court framed two issues: jurisdiction and costs. Relying on the Owners of the Motor Vessel 'Lillian s' definition of jurisdiction, and following Tobias Achola Osindi and Savraj Singh Chana, the court held that the consent under Section 30 cannot confer jurisdiction over matters statutorily reserved to the Adjudication officer, and that the appellant had not exhausted the objection process under Section 26 or appeal to the Minister under Section 29. On costs, Section 27 of the Civil Procedure Act applies even absent jurisdiction, and kinship is no bar. The appeal was dismissed with costs.

Key legal issues

#
01

Whether the trial court had jurisdiction over a claim concerning land in an adjudication section despite a Section 30 consent

Holding

The trial court had no jurisdiction; the Land Adjudication Act and Land Consolidation Act reserve determination of interests in land in adjudication areas to the Adjudication officer and statutory mechanisms, which must first be exhausted

Reasoning

The suit parcels fell within Kianjai Adjudication Section. Sections 9, 10, 11 and 26 of the Land Adjudication Act vest power to determine claims and objections over the adjudication register in the Adjudication officer. The appellant never lodged an objection or appealed to the Minister. A consent under Section 30 does not bypass these mechanisms, and jurisdiction is conferred by Constitution or statute, not by consent or transfer orders.

p. 5
02

Whether the appellant was properly ordered to pay costs despite being a relative of the respondent

Holding

Yes; costs are discretionary and follow the event, and kinship is no bar to an award of costs

Reasoning

Section 27 of the Civil Procedure Act gives the court full discretion over costs; the proviso states costs follow the event unless the court for good reason otherwise orders. The provision applies even where the court lacks jurisdiction to try the suit. If the appellant regarded the respondent as a relative, he should have resolved the dispute amicably rather than litigate.

p. 6

Legal principles established

#
  • A consent issued by a Land Adjudication officer under Section 30 of the Land Adjudication Act does not confer jurisdiction on the Court to determine matters reserved by statute to the adjudication process
  • Where a statutory dispute resolution mechanism is provided, it must be exhausted before approaching the Court
  • Costs follow the event and may be awarded even where the court lacked jurisdiction over the suit
  • A transfer order does not confer jurisdiction where none exists

Court orders

#
  1. 1.The appeal is dismissed with costs

Authorities

#

Legislation

  • Government Proceedings ActSections 2, 4(a), 16(2)
  • Civil Procedure Code / Civil Procedure Rules, 2010Order 29 Rule 2(2)(d)
  • Land Adjudication ActCap. 284, Sections 4-23, 26(1)-(2), 29, 30
  • Land Consolidation ActCap. 283, Section 8(1)
  • Civil Procedure ActSection 27(1)
  • Land Registration ActNo. 3 of 2012, Section 25(2)
  • Constitution of KenyaArticle 165(3)(b)

Cases cited (10)

  • Francis Murugi M'Ibaya Vs Paul Kigea Nabea (deceased) and now substituted by Kigea Amos Kilemi and Paskwale (Mwiti Kigea and 4 others
    (2020) eKLR
  • M Vs Lilian 'S'
    (1989) K.L.R 1
  • Owners of the Motor Vessel "Lillian s" Vs Caltex Oil (Kenya) Ltd
    (1989) K.L.R 1
  • Samuel Kamau Macharia and Another Vs Kenya Commercial Bank Ltd & 2 Others
    (2012) eKLR
  • Lydiah Iza Mwamburi Vs Patrick Njoka Ndwiga
    (2020) eKLR
  • Impressing Fortune Federice Vs Nabwize
  • Ethics and Anti-Corruption Commission Vs Nderitu Wachira and 2 Others
    (2016) eKLR
  • Stanley Thiaine Mbui & Another Vs the Land Adjudication officer, Tigania West & Another
    HC ELC Misc. Application No. 93 of 2010 (Meru) (unreported)
  • Tobias Achola Osindi & 13 Others Vs Cypriano Otieno Ogalo & 6 Others
    HCC No. 4 of 2011
  • Savraj Singh Chana Vs Diamond Trust Bank (Kenya) Limited & Another
    (2020) eKLR
On appeal from
Principal Magistrate's Court, Tigania
PMCC No. 47 of 2017 (Tigania) / HCCC No. 86 of 2012
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act over the ruling of the Principal Magistrate's Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "David Mwithirwa M’Ibaya v Geoffrey Kibaara M’Ibaya [2021] KEELC 2293 (KLR)", Case Analysis (2021). ELC Appeal arising from PMCC No. 47 of 2017 (Tigania). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2293/eng@2021-07-28

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