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ELCDismissedOriginating Summons filed January 21, 2009 (Kwale; adoption referenced in Kwale Land Case no 34 of 2008)· [2022] KEELC 3294 (KLR)

Isaack & 4 others v Gichengo & 7 others (Miscellaneous Civil Application 14 of 2009) [2022] KEELC 3294 (KLR)

Environment and Land Court
16 June 2022
MSMunyao Sila
2,603 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a 13-year-old land claim, ruling a Land Disputes Tribunal had no power to decide land ownership, voiding both its award and the judgment adopting it.

What this practically means

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Executive summary

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The plaintiffs commenced an Originating Summons on January 21, 2009 under section 143(1) of the repealed Registered Land Act, sections 3 and 3A of the Civil Procedure Act and order 36 of the repealed Civil Procedure Rules, seeking rectification of the register for Kwale/Golini/651 to replace the defendants' names with their own, to give effect to an award of the Matuga Land Disputes Tribunal dated September 16, 2008, which had been adopted as judgment by the Senior Resident Magistrate's Court at Kwale on January 6, 2009 in Kwale Land Case no 34 of 2008. The defendants were served by substituted advertisement and did not participate. The court held it had no jurisdiction to adopt a tribunal award or execute a magistrate's court decree, since under section 7 of the repealed Land Disputes Tribunal Act such awards are enforced as decrees under the Civil Procedure Act once entered by the magistrate's court. Section 143 could not be invoked because the suit sought adoption of a prior decision rather than resolution of an ownership dispute, and magistrates' courts had concurrent rectification jurisdiction capped at Kshs 500,000. Turning to the underlying award, the court found the tribunal had exceeded its jurisdiction under section 3 of the Land Disputes Tribunal Act by determining ownership and ordering cancellation of title, with doubts also raised about service on the respondents before the tribunal. Exercising its supervisory jurisdiction, the court quashed the tribunal award and set aside the magistrate's court judgment adopting it, both being null and void for want of jurisdiction. The suit was dismissed with no orders as to costs, the plaintiffs being left to institute proper proceedings if they wish to claim the land.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over tribunal awards adopted by a magistrate's court

Holding

The court has no jurisdiction to adopt a tribunal award or execute a magistrate's court decree; such decrees are enforced under the Civil Procedure Act after entry of judgment by the magistrate's court

Reasoning

Under section 7 of the repealed Land Disputes Tribunal Act, an award is filed in the magistrate's court, judgment is entered, and a decree issues enforceable under the Civil Procedure Act. The High Court (and its successor, this court) plays no role in adoption or execution. Order 36 of the pre-2010 rules and sections 3 and 3A of the Civil Procedure Act confer no such jurisdiction. The suit was therefore incompetent and had to be dismissed.

p. 4
02

Scope of rectification jurisdiction under section 143 of the Registered Land Act

Holding

Section 143 permits rectification only after hearing a properly presented suit; it cannot be used to rubber-stamp a tribunal award, and magistrates' courts possessed the same rectification jurisdiction subject to a pecuniary limit of Kshs 500,000

Reasoning

The court accepted that section 143 conferred jurisdiction to cancel title obtained by fraud or mistake, but only upon a suit properly before it. The present suit sought adoption of prior decisions rather than resolution of the ownership dispute, so section 143 could not be invoked. Further, the claim that the magistrate's court lacked jurisdiction to cancel title was wrong, since magistrates had concurrent jurisdiction capped at Kshs 500,000 under section 159 of the Registered Land Act.

p. 5
03

Jurisdiction of the Land Disputes Tribunal and exercise of supervisory jurisdiction

Holding

The tribunal exceeded its statutory jurisdiction under section 3 by determining ownership and ordering cancellation of title; the award and the adopting judgment were null and void and were quashed and set aside under the court's supervisory powers

Reasoning

Section 3 of the Land Disputes Tribunal Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass. The dispute presented was one of ownership, outside these categories. The court declined to ignore an award and judgment made without jurisdiction, particularly given doubts about service on the respondents, and quashed the award and set aside the magistrate's judgment adopting it.

p. 6

Legal principles established

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  • Once a Land Disputes Tribunal award is entered as judgment by the magistrate's court, it is enforceable as a decree under the Civil Procedure Act and the High Court has no role in its adoption or execution
  • Land Disputes Tribunals had no jurisdiction to determine ownership of land or order cancellation of title; their jurisdiction was confined to boundary disputes, claims to occupy or work land, and trespass
  • A decree or award made without jurisdiction is null and void and may be quashed in exercise of supervisory jurisdiction

Court orders

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  1. 1.The suit is dismissed
  2. 2.In exercise of supervisory powers, the award of the Matuga Land Disputes Tribunal dated September 16, 2008 in respect of Kwale/Golini/651 is quashed
  3. 3.The judgment of the Kwale Magistrate's Court in Land Case no 34 of 2008 adopting the award is set aside
  4. 4.No orders as to costs

Authorities

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Legislation

  • Registered Land Act (repealed), cap 300section 143(1) and (2)
  • Registered Land Act (repealed)section 159
  • Civil Procedure Act, cap 21sections 3 and 3A
  • Civil Procedure Rules (pre-2010, repealed)order 36
  • Land Disputes Tribunal Act (repealed)section 3(1)
  • Land Disputes Tribunal Act (repealed)section 7(1) and (2)
Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court, with supervisory jurisdiction over subordinate courts and tribunals; suit founded on section 143(1) of the Registered Land Act (repealed), sections 3 and 3A of the Civil Procedure Act and order 36 of the repealed Civil Procedure Rules

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, "Isaack & 4 others v Gichengo & 7 others (Miscellaneous Civil Application 14 of 2009) [2022] KEELC 3294 (KLR)", Case Analysis (2022). Originating Summons filed January 21, 2009 (Kwale; adoption referenced in Kwale Land Case no 34 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3294/eng@2022-06-16

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