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ELCDismissedAppeal from Tigania PMCC No. 61 of 2018· [2021] KEELC 3112 (KLR)

John Kiriabu Laikuru v Stanley Mugambi Lithara & 3 others [2021] KEELC 3112 (KLR)

Environment and Land Court
27 May 2021
3,460 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 concludes, magistrates' courts cannot reopen the outcome, even with a Land Adjudication Officer's consent.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court against a ruling of Hon. G. Sogomo (PM) of 17th January 2019 in Tigania PMCC No. 61 of 2018, by which the trial court struck out the Appellant's land suit for want of jurisdiction with costs. The underlying plaint sought declarations of ownership over parcels 2185 and 1055 Uringu 1 Adjudication Section, cancellation of the adjudication records, rectification of the register, an injunction and damages, the Appellant alleging that the 1st and 2nd Respondents fraudulently obtained registration during demarcation and that his objections before the Land Adjudication Officer were wrongly determined. The trial court held the Appellant should have appealed to the Minister under Section 29 of the Land Adjudication Act. On appeal, the court framed three issues: whether the trial court applied the wrong statute, whether it correctly declined jurisdiction, and costs. The court accepted, following Peter Kimandiu, that the Land Consolidation Act (Cap. 283) rather than the Land Adjudication Act (Cap. 284) applied to Tigania, but held the error caused no miscarriage of justice since Section 26(3) of the LCA equally ousts magistrates' court jurisdiction. Relying on Tobias Achola Osindi, Stephen Kungutia and Julia Kaburia, the court held the adjudication process had concluded, the LAO's decision of 9th December 2008 was final subject only to supervisory jurisdiction of superior courts, and the LAO's consent could not confer jurisdiction. The appeal was dismissed with no order as to costs because the Respondents did not participate in the appeal.

Key legal issues

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01

Whether the trial court erred in applying the Land Adjudication Act (Cap. 284) instead of the Land Consolidation Act (Cap. 283)

Holding

Yes, the applicable statute was the LCA, but the error did not occasion a miscarriage of justice because the correct statute also ousted the trial court's jurisdiction

Reasoning

Relying on Peter Kimandiu v Land Adjudication Officer Tigania West District, the court accepted that the LCA applied to Tigania. However, Section 26(3) of the LCA ousts the jurisdiction of magistrates' courts to deal directly with appeals from the Adjudication Officer or to undertake fresh adjudication of matters governed by the Act. The wrong statute was therefore immaterial to the jurisdictional outcome.

p. 3
02

Whether the trial court correctly held it had no jurisdiction to entertain the suit

Holding

Yes. The adjudication process had concluded; the LAO's decision of 9th December 2008 was final subject only to the supervisory jurisdiction of the superior courts, and the LAO's consent could not confer jurisdiction

Reasoning

The dispute had been processed through all institutions under the LCA up to determination of the Appellant's objections. Dissatisfied with the outcome, the Appellant sought a fresh adjudication before the magistrates' court, effectively a second bite at the cherry. Citing Okongo J in Tobias Achola Osindi and the Court of Appeal in Stephen Kungutia and Julia Kaburia, the court held that adjudication of rights in an adjudication area is reserved for the statutory bodies and the court's role is supervisory only.

p. 4
03

Who bears the costs of the appeal

Holding

No order as to costs, despite the general rule that costs follow the event

Reasoning

Although under the proviso to Section 27 of the Civil Procedure Act costs follow the event and a successful party ordinarily gets costs, the Respondents did not file submissions or participate in the appeal, so no costs order was made.

p. 5

Legal principles established

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  • A magistrates' court has no jurisdiction to undertake fresh adjudication of property rights in an adjudication area; its role is supervisory only of the adjudication process
  • Consent of the Land Adjudication Officer cannot confer jurisdiction on a court to re-open and reconsider matters already determined by the adjudication bodies
  • A party dissatisfied with the outcome of an objection before the LAO cannot bring a fresh suit seeking fresh adjudication of the same issues

Court orders

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  1. 1.The Appellant's appeal is dismissed
  2. 2.No order as to costs (the Respondents did not participate in the appeal)

Authorities

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Legislation

  • Land Adjudication ActSection 29; Cap. 284
  • Land Consolidation ActSection 26(3); Section 8; Cap. 283
  • Civil Procedure ActSection 27 (proviso); Cap. 21

Cases cited (5)

  • Peter Kimandiu v Land Adjudication Officer Tigania West District & 4 Others
    [2016] eKLR
  • Tobias Achola Osindi & 13 Others v Cyprian Otieno Ogalo & 6 Others
    [2013] eKLR
  • Stephen Kungutia & 2 Others v Severina Nchulubi
    Nyeri Civil Appeal No. 221 of 2010 (unreported)
  • 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. 61 of 2018
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the Magistrates' Court on land matters (Land Adjudication Act (Cap. 284) and Land Consolidation Act (Cap. 283) in issue)

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, "John Kiriabu Laikuru v Stanley Mugambi Lithara & 3 others [2021] KEELC 3112 (KLR)", Case Analysis (2021). Appeal from Tigania PMCC No. 61 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3112/eng@2021-05-20

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