Mokaya & another v Nyangau & another (Environment & Land Case 99 of 2021) [2022] KEELC 675 (KLR)
The bottom line
#A Kenyan court cancelled land titles created through a tribunal award that had no authority to decide land ownership, restoring property to a deceased man's estate as distributed by the High Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Disputes Tribunal over title disputes
The Tribunal's award determining title to the suit property was beyond its statutory jurisdiction and a nullity
Section 3 of the repealed Land Disputes Tribunals Act limited the Tribunal to disputes over division or boundaries of land, claims to occupy or work land, and trespass. The Rigoma Tribunal's decision determined title to the suit property, which fell outside these categories. The adopting magistrate's court therefore acted ultra vires, rendering the decree void for want of jurisdiction.
Intermeddling with the estate of a deceased person
The Tribunal's decision of February 22, 2005, made before the grant was confirmed on April 25, 2005, amounted to intermeddling with the estate contrary to Section 45(1) of the Law of Succession Act
The deceased died on October 2, 1973 and letters of administration were not confirmed until April 25, 2005. The Tribunal's decision distributing the land preceded confirmation of the grant, so no free property of the deceased could lawfully be dealt with at that time. The award and everything done pursuant to it, including the subdivision and registration of parcels 2530 and 2531, were null and void ab initio.
Relationship of the 2nd Plaintiff to the 1st Plaintiff under Gusii customary law
The court found the Plaintiffs truthful: the 2nd Plaintiff is a wife of the 1st Plaintiff's late brother under a post-humous (widow inheritance) Gusii custom, not a co-wife of the Defendants
Although no expert in Gusii customary law testified, both Plaintiffs explained the custom whereby a deceased unmarried man's family obtains a wife who bears children with the deceased's brother on behalf of the deceased. The 2nd Plaintiff disowned the 1st Plaintiff as her husband in cross-examination. The court accepted this evidence despite the parties living together and having children.
Validity of the certificate of confirmation of grant
The certificate of confirmation of grant issued April 25, 2005 in Kisii High Court Succession Cause No 195 of 1994 still stands and the court declined to interfere with it
The Defendants' objection to the confirmation of the grant was dismissed, and the certificate allocated 7¼ acres each to the 1st and 2nd Plaintiffs out of East Kitutu/Kebirichi/945. Since that certificate remained valid, the subsequent subdivision effected through the void tribunal decree could not stand, justifying cancellation of titles to parcels 2530 and 2531 and rectification of the register.
Legal principles established
#- Land Disputes Tribunals under the repealed Land Disputes Tribunals Act (Cap 303A) had no jurisdiction over disputes concerning ownership of or title to land.
- A decree and acts done pursuant to a tribunal award made without jurisdiction are null and void ab initio.
- Distribution of a deceased person's property before confirmation of a grant amounts to intermeddling contrary to Section 45(1) of the Law of Succession Act.
Court orders
#- 1.Judgment entered for the Plaintiffs in terms of Prayer Nos. (a), (b) and (c) of the Plaint dated December 17, 2012: declarations that the closure and subdivision of East Kitutu/Kebirichi/2530 and 2531 is null and void, that the decision of Rigoma Land Disputes Tribunal Case No 4 of 2005 is invalid, null and void, cancellation of the titles to 2530 and 2531, rectification of the register and subdivision/registration of East Kitutu/Kebirichi/945 in accordance with the certificate of confirmation of grant issued April 25, 2005 in Kisii High Court Succession Cause No 195 of 2004
- 2.No orders as to costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title and registration of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mokaya & another v Nyangau & another (Environment & Land Case 99 of 2021) [2022] KEELC 675 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/675/eng@2022-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.