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ELCDismissedTigania PMCC No. 111 of 2009 (Appeal)· [2021] KEELC 3103 (KLR)

Joseph Kiruja Maingi v Rose Nambura & 2 others [2021] KEELC 3103 (KLR)

Environment and Land Court
27 May 2021
3,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that once land adjudication is decided, ordinary courts cannot reopen it — even if the wrong law was cited.

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 against a ruling of Hon. G. Sogomo (PM) of 13th June 2019 in Tigania PMCC No. 111 of 2009, in which the trial court upheld a preliminary objection and struck out the Appellant's suit challenging the adjudication and transfer of parcel No. 2247 Kiguchwa Adjudication Section. The Appellant had sued for declarations that the parcel belonged to his late father's estate and that its registration to the 1st Respondent was fraudulent. The trial court held it lacked jurisdiction under both the Land Consolidation Act (Cap 283) and the Land Adjudication Act (Cap 284). On appeal, Y. M. Angima, ELC Judge, framed three issues: whether the wrong statute was applied, whether the trial court correctly found it lacked jurisdiction, and costs. The court accepted, following Peter Kimandiu, that the Land Consolidation Act, not the Land Adjudication Act, applied to Tigania, but held the error occasioned no miscarriage of justice since both statutes equally oust magistrates' court jurisdiction over adjudication matters. On jurisdiction, the court found that the adjudication process, including objection proceedings dismissed on 9th December 2008, had concluded; the Appellant was seeking a second bite at the cherry, and the LAO's consent could not confer jurisdiction to reopen determined matters. The court relied on Tobias Achola Osindi and Stephen Kungutia. The appeal was dismissed with costs to the 1st Respondent only, the 2nd and 3rd Respondents not having participated.

Key legal issues

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01

Whether the trial court erred by applying the wrong statute (Land Adjudication Act instead of Land Consolidation Act)

Holding

The trial court did apply the wrong statute, as the Land Consolidation Act applies to Tigania, but the error occasioned no miscarriage of justice because the court would have reached the same conclusion under the Land Consolidation Act alone.

Reasoning

Relying on Peter Kimandiu v Land Adjudication Officer Tigania West District, the court accepted that only the Land Consolidation Act applied to Tigania. However, both statutes' relevant provisions oust magistrates' court jurisdiction over adjudication matters, so the wrong statutory reference could not have changed the outcome and did not prejudice the Appellant.

p. 3
02

Whether the trial court had jurisdiction to entertain the suit despite the LAO's consent

Holding

The trial court had no jurisdiction. The adjudication and objection process had concluded with finality, and the LAO's consent could not transfer jurisdiction to reopen matters already determined.

Reasoning

The Appellant had lost objection proceedings before the LAO on 9th December 2008. Filing a fresh suit seeking fresh adjudication amounted to a second bite at the cherry and a usurpation of jurisdiction reserved for bodies under the Land Consolidation Act. The consent under Section 30 only permits suits against persons with competing claims, not suits challenging the LAO's own decision. The decision of the LAO was final subject only to supervisory jurisdiction of superior courts.

p. 4
03

Who shall bear the costs of the appeal

Holding

Costs follow the event; the successful 1st Respondent was awarded costs, while the non-participating 2nd and 3rd Respondents were not.

Reasoning

Applying the proviso to Section 27 of the Civil Procedure Act and Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the general rule is that costs follow the event unless the court directs otherwise for good reason. No good reason existed to deny the 1st Respondent costs; the 2nd and 3rd Respondents took no part in the appeal.

p. 5

Legal principles established

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  • Only one land adjudication statute can apply to a given adjudication area at any given time; in Tigania the applicable statute is the Land Consolidation Act.
  • Sections 26(3) of the Land Consolidation Act and 29(1) of the Land Adjudication Act oust the jurisdiction of magistrates' courts to directly entertain appeals or fresh adjudication of matters governed by those Acts.
  • A consent issued by the Land Adjudication Officer under Section 30 does not confer jurisdiction on the court to determine matters already determined through the adjudication dispute-resolution machinery.

Court orders

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  1. 1.The Appellant's appeal is dismissed with costs to the 1st Respondent only
  2. 2.The 2nd and 3rd Respondents are not awarded any costs since they did not participate in the appeal

Authorities

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Legislation

  • Land Consolidation ActSections 13, 14, 26, 26(3)
  • Land Adjudication ActSections 26, 29, 29(1), 30
  • Government Proceedings ActSection 13A
  • Civil Procedure ActSection 27 (proviso)

Cases cited (7)

  • Peter Kimandiu v Land Adjudication Officer Tigania West District & 4 Others
    [2016] eKLR
  • Stephen Kungutia & 2 Others v Severina Nchulubi
    Nyeri Civil Appeal No 221 of 2010 (unreported)
  • Nicholas Mugambi (suing as legal representative of the estate of Peter Etharia M’Kailibi) & Others v Zachary Baariu & 6 Others
    [2018] eKLR
  • William Mutuura Kairiba v Samuel Nkari & 2 Others
    [2018] eKLR
  • Tobias Achola Osindi & 13 Others v Cyprian Otieno Ogalo & 6 Others
    [2013] eKLR
  • Julia Kaburia v Kabeera & 5 Others
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Principal Magistrate's Court, Tigania
Tigania PMCC No. 111 of 2009
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Kiruja Maingi v Rose Nambura & 2 others [2021] KEELC 3103 (KLR)", Case Analysis (2021). Tigania PMCC No. 111 of 2009 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3103/eng@2021-05-27

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