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ELCAllowedELC Civil Appeal No 21 of 2015· [2021] KEELC 2294 (KLR)

Lucy Wambui Munyaka v Peter Njenga Waweru [2021] KEELC 2294 (KLR)

Environment and Land Court
29 July 2021
LKL. Komingoi
2,017 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan magistrate had no power to remove a land restriction; only the Environment and Land Court can do that under the Land Registration Act.

What this practically means

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Executive summary

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This was a first-instance appeal to the Environment and Land Court at Nairobi against the ruling of Hon. E. Michieka, Senior Resident Magistrate, delivered on 23rd March 2015 in Kikuyu SPMCC No 3 of 2009, in which the trial magistrate ordered the removal of a restriction registered on 5th March 2009 over Title No Muguga/Kanyariri/T.104, awarded costs to the respondent and granted a 30-day stay. The appellant contended that the restriction was imposed pending the hearing and determination of Appeal No 4 of 2009 before the Provincial Land Disputes Appeals Committee, and that the subordinate court, having adopted the Land Disputes Tribunal award as its judgment and issued a decree, was functus officio and lacked jurisdiction; further, that power to remove a restriction under Section 78(2) of the Land Registration Act, 2012 vests in the Environment and Land Court. The respondent argued that no stay operated and that the appellant's failure to prosecute the appeal since 2009 justified lifting the restriction. The court framed a single issue: whether the trial magistrate erred in lifting the restriction. Relying on Nyaga Nderi v James Nyaga Kinyua on the preservation purpose of restrictions, the court held that the respondent should have approached the Environment and Land Court, that the lower court was functus officio, and that the respondent took no steps to have the pending appeal heard. The appeal was allowed, the trial court's ruling was set aside, and the appellant was awarded costs of the appeal.

Key legal issues

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01

Whether the subordinate court had jurisdiction to order removal of the restriction on Muguga/Kanyariri/T.104

Holding

The lower court lacked jurisdiction; the power to remove a restriction under Section 78(2) of the Land Registration Act, 2012 vests in the Environment and Land Court, and the lower court was functus officio after adopting the tribunal award as its judgment.

Reasoning

The court accepted the appellant's submissions that the restriction issue was properly before the Environment and Land Court, since under the Land Registration Act 'the court' means the Environment and Land Court. Further, having adopted the Land Disputes Tribunal award as its judgment and issued a decree, the lower court was functus officio, leaving it no jurisdiction to entertain the respondent's Notice of Motion seeking removal of the restriction.

p. 3
02

Whether the restriction should subsist pending hearing and determination of Appeal No 4 of 2009

Holding

Yes. The restriction was imposed specifically to await the hearing and determination of the appeal; the respondent took no steps to have the appeal heard or dismissed before seeking removal of the restriction.

Reasoning

The court found the restriction was registered pending determination of Appeal No 4 of 2009, confirmed by a letter from the Provincial Commissioner requesting that status quo be maintained. Applying Nyaga Nderi v James Nyaga Kinyua, the purpose of a restriction is preservation of disputed land until pending issues are resolved. The respondent's failure to prosecute the appeal did not entitle him to remove the restriction without moving the appeals committee.

p. 3

Legal principles established

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  • Where a restriction on land was imposed to subsist until a pending appeal is heard and determined, an application for its removal ought to be made to the Environment and Land Court, the court contemplated under Section 78(2) of the Land Registration Act, 2012.
  • Once a lower court adopts a tribunal award as its judgment and issues a decree, it becomes functus officio and has no jurisdiction to entertain subsequent applications in the matter.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling of the trial magistrate delivered 23rd March 2015 is set aside
  3. 3.The appellant shall have costs of this appeal

Authorities

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Legislation

  • Land Registration ActSection 76
  • Land Registration ActSection 78(2)
  • Constitution of KenyaArticle 162(2)
  • Environment and Land Court Act

Cases cited (1)

  • Nyaga Nderi vs James Nyaga Kinyua
    [2012] eKLR
On appeal from
Senior Resident Magistrate's Court at Kikuyu
SPMCC No 3 of 2009
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya; Environment and Land Court Act No 19 of 2011 (appeal from subordinate court)

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, "Lucy Wambui Munyaka v Peter Njenga Waweru [2021] KEELC 2294 (KLR)", Case Analysis (2021). ELC Civil Appeal No 21 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2294/eng@2021-07-29

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