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ELCPartially AllowedAppeal dated July 31, 2001 (from Nyeri Provincial Appeal Tribunal Case No 148 of 2001)· [2022] KEELC 3749 (KLR)

Njebere v Muriuki & 2 others; Kabui (Applicant) (Environment and Land Appeal 2 of 2017) [2022] KEELC 3749 (KLR)

Environment and Land Court
9 June 2022
JOJ. O. Olola
1,313 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that Land Disputes Tribunals had no power to award shares of registered land, voiding the 2001 decision entirely.

What this practically means

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Executive summary

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This was an appeal, originally filed in the High Court on July 31, 2001 by Kabui Njebere (since deceased) and transferred to the Environment and Land Court at Nyeri on February 15, 2016, challenging the decision of the Nyeri Provincial Land Disputes Tribunal of July 12, 2001 in Provincial Appeal Tribunal Case No 148 of 2001. The tribunal had upheld the Karatina District Land Tribunal's award directing the deceased, then registered proprietor of LR No Magutu/Gaikuyu/561, to transfer 1.0 acre to Peter Maina Kariuki and 1.5 acres to Margaret Wambui Kungu and Muriuki Kariungi Njebere jointly. The appeal was abated on the appellant's death in 2006, then revived and the legal representative, Stephen Kariuki Kabui, substituted following Waithaka J's ruling of February 28, 2019. The respondents objected to the legal representative's locus, but the court rejected this, finding prayers b and c of the June 4, 2018 motion had been allowed. On jurisdiction, the court held that although section 3(1) of the repealed Land Disputes Tribunals Act covered claims to occupy or work land, the respondents' claim was in substance one to a share of registered land founded on trust, requiring cancellation and apportionment of title - a matter beyond the tribunals' competence. Relying on Joseph Karobia Gicheru v Michael Gachoki Gicheru (2013) eKLR, the court held such proceedings a nullity, allowed the appeal, set aside the tribunal's determination of July 12, 2001 and all consequential orders, with each party bearing their own costs.

Key legal issues

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01

Locus standi of the deceased appellant's legal representative

Holding

The substitution and revival ordered by Waithaka J on February 28, 2019 gave the legal representative and counsel locus to prosecute the appeal; the respondents' objection failed.

Reasoning

The respondents argued that no formal order substituted the deceased appellant. The court noted that Stephen Kariuki Kabui's notice of motion of June 4, 2018 sought substitution and revival in prayers b and c, and Waithaka J allowed the application in terms of those prayers in her ruling of February 28, 2019. Accordingly the submission that there was no formal order was rejected.

p. 2
02

Jurisdiction of Land Disputes Tribunals over claims to registered land founded on trust

Holding

The tribunals lacked jurisdiction; the respondents' claim was for a share of registered land based on trust, involving cancellation and apportionment of title, which fell outside section 3(1) of the Land Disputes Tribunals Act.

Reasoning

Section 3(1) of the repealed Act limited tribunals to disputes over division or boundaries of land, claims to occupy or work land, and trespass. The court found the respondents' claim, as pleaded before the Mathira Tribunal, was not a claim to work or occupy land but a claim to a share of registered land founded on trust, requiring cancellation and apportionment of title. Awarding portions of land registered under the Registered Land Act was beyond the tribunals' powers, rendering the proceedings a nullity.

p. 3

Legal principles established

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  • Where a tribunal determines a dispute over which it has no jurisdiction, the proceedings are null and void ab initio and no consent or acquiescence can confer jurisdiction
  • The Land Disputes Tribunals Act (s 3(1)) did not confer jurisdiction on tribunals to determine claims to title of registered land based on trust; such matters are beyond their statutory remit

Court orders

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  1. 1.Appeal allowed
  2. 2.Determination of the Nyeri Provincial Appeals Land Disputes Tribunal Case No 148 of 2001 dated July 12, 2001 set aside together with any consequential orders
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Land Disputes Tribunals Act (now repealed)section 3(1)
  • Registered Land Act

Cases cited (1)

  • Joseph Karobia Gicheru vs Michael Gachoki Gicheru
    (2013) eKLR
On appeal from
Nyeri Provincial Land Disputes Tribunal
Nyeri Provincial Appeal Tribunal Case No 148 of 2001
Jurisdiction invoked
Appeal against decision of the Provincial Land Disputes Tribunal under the Land Disputes Tribunals Act (now repealed); originally filed in the High Court and transferred to the Environment and Land Court on February 15, 2016

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, "Njebere v Muriuki & 2 others; Kabui (Applicant) (Environment and Land Appeal 2 of 2017) [2022] KEELC 3749 (KLR)", Case Analysis (2022). Appeal dated July 31, 2001 (from Nyeri Provincial Appeal Tribunal Case No 148 of 2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3749/eng@2022-06-09

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