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ELCPartially AllowedAppeal filed 6th October 2009 (Bungoma High Court)· [2021] KEELC 4241 (KLR)

John Ondieki Masai (substituted with Elizabeth Namaemba Masai) v Albert C. Masai [2021] KEELC 4241 (KLR)

High Court of Kenya
25 February 2021
1,954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the High Court at Bungoma against the judgment of the Kakamega Provincial Appeals Committee delivered on 18th August 2009, which had upheld the award of the Ndivisi Land Disputes Tribunal directing the Appellant, John Ondiek Masai, to transfer three acres to his brother, the Respondent Albert C. Masai, from land parcels NDIVISI/NDIVISI/1042 and 1366. The Tribunal's award had been adopted as a judgment of the Resident Magistrate's Court Webuye in 2005 and a decree issued in the Chief Magistrate's Court Bungoma in L.D.T. Case No 37 of 2009. After the Appellant's death on 10th August 2013, his widow and legal representative, Elizabeth Namaemba Masai, was substituted. The court allowed the appeal on four grounds. First, the title to parcel 1042 was closed in 1982 upon sub-division, so the Tribunal exercised jurisdiction over land that no longer existed, rendering the proceedings void ab initio. Secondly, the claim filed in 2005 was statute barred, the cause of action having accrued in 1980, and Section 13(3) of the repealed Land Disputes Tribunal Act subjected the Tribunal to the Limitation of Actions Act. Thirdly, the Tribunal awarded three acres from parcel 1366, which was never in dispute before it. Fourthly, in directing transfer of registered land, the Tribunal determined ownership of registered land, exceeding its jurisdiction as held in the Jonathan Amunavi decision. The court set aside the Appeals Committee's decision as adopted in the decree of 30th September 2009, ordered each party to bear their own costs, and left the Respondent free to pursue a possible claim in trust in another forum.

Key legal issues

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01

Jurisdiction over non-existent land

Holding

The Tribunal and Appeals Committee acted without jurisdiction as parcel NDIVISI/NDIVISI/1042 had ceased to exist in 1982 upon sub-division

Reasoning

The Green Card showed the title was closed on 27th January 1982 upon sub-division. By the time the Respondent filed his claim in 2005, the land had ceased to exist twenty-three years earlier. The Tribunal was exercising jurisdiction over a non-existent parcel and the proceedings were void ab initio.

p. 2
02

Limitation of actions

Holding

The claim, filed in 2005, was statute barred as the cause of action accrued in 1980 when the Appellant was registered as proprietor

Reasoning

Section 13(3) of the repealed Act barred the Tribunal from entertaining time-barred proceedings. Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years. The Respondent admitted knowledge from 1980 that the Appellant had registered the land and refused him a share, so the claim filed in 2005 was out of time.

p. 3
03

Award over land not in dispute

Holding

The Tribunal erred by awarding three acres from parcel NDIVISI/NDIVISI/1366 which was never claimed before it

Reasoning

The claim before the Tribunal related solely to parcel NDIVISI/NDIVISI/1042. The verdict nonetheless directed transfer of three acres from parcels 1366 and 1042. By making a verdict over land not before it, the Tribunal exercised jurisdiction over a matter that was not in dispute, an error the Appeals Committee upheld.

p. 3
04

Ownership of registered land

Holding

The Tribunal, in directing transfer of registered land, determined ownership of registered land and thereby exceeded its jurisdiction

Reasoning

Relying on the Jonathan Amunavi decision of the Court of Appeal, the court held that a Land Disputes Tribunal has no jurisdiction to determine disputes relating to ownership of registered land. The award directing the Appellant to transfer three acres to the Claimant was such a determination.

p. 3

Legal principles established

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  • A Land Disputes Tribunal has no jurisdiction to determine a dispute relating to ownership of registered land
  • The Land Disputes Tribunal was governed by the Limitation of Actions Act and could not entertain time-barred proceedings
  • Proceedings before a tribunal over land that no longer exists are void ab initio

Court orders

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  1. 1.The appeal is allowed
  2. 2.The decision of the Appeals Committee as adopted by the Chief Magistrate's Court Bungoma in its decree dated 30th September 2009 is set aside
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 3(1)
  • Land Disputes Tribunal Act (Cap 303A Laws of Kenya)Section 4
  • Land Disputes Tribunal Act (Cap 303A Laws of Kenya)Section 13(3)
  • Limitation of Actions ActSection 7

Cases cited (1)

  • JONATHAN AMUNAVI v. THE CHAIRMAN SABATIA LAND DISPUTES TRIBUNAL
    C.A Civil Appeal No 256 of 2002
On appeal from
Kakamega Provincial Appeals Committee
Bungoma Chief Magistrate's Court L.D.T. Case No 37 of 2009
Jurisdiction invoked
Appeal from the Provincial Appeals Committee under the repealed Land Disputes Tribunal Act (Cap 303A)

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 Ondieki Masai (substituted with Elizabeth Namaemba Masai) v Albert C. Masai [2021] KEELC 4241 (KLR)", Case Analysis (2021). Appeal filed 6th October 2009 (Bungoma High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4241/eng@2021-02-25

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