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ELCDismissedMiscellaneous Application dated August 11, 2021 (Murang'a)· [2023] KEELC 315 (KLR)

Warui (Suing as the Personal Representative of Warui Muriu) v Chief Magistrate’s Court at Murang’a & 2 others (Environment and Land Miscellaneous Application 1 of 2022) [2023] KEELC 315 (KLR)

Environment and Land Court
26 January 2023
LGL GACHERU
2,281 words in judgment
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The bottom line

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The Environment and Land Court in Murang'a dismissed a landowner's bid to overturn a Tribunal award adopted in 2005, saying she must instead seek cancellation of the title issued on it.

What this practically means

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Executive summary

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The Applicant, Monica Wanjiru Warui, moved the court by Notice of Motion dated August 11, 2021 seeking, among other orders, inhibition against registration of changes on land parcel Loc17/Iganjo/3440, injunction against implementation of orders issued on July 29, 2021 in CMCC No 66/05 Murang'a, and recall of the records of that case on the ground that the Makuyu Land Disputes Tribunal lacked jurisdiction and its awards were therefore void. The dispute arose from a Tribunal award in LDT No 41/04 (Maragua/Makuyu) granting the 3rd Respondent's father 3 acres out of the Applicant's deceased husband's 16 acres, which award was adopted as a judgment of the Murang'a court on December 22, 2005. The Appeals Committee later found on September 23, 2010 that the Tribunal had no jurisdiction over registered land. The 3rd Respondent opposed, contending the adoption orders had never been set aside and that title had already been issued, and that the Applicant was guilty of laches. The court held that under Section 7 of the repealed Land Disputes Tribunals Act the trial magistrate's court had no role other than to adopt the Tribunal's award, there being no order barring adoption, and could not be faulted. Since the proceedings had already been acted on and title allegedly issued, the proper remedy was an application for cancellation of title or an appeal, not a miscellaneous Notice of Motion. The application was dismissed entirely with costs to the 3rd Respondent.

Key legal issues

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01

Proper procedural vehicle for challenging adoption of a Tribunal award

Holding

The application was misconceived; the decision of the trial court adopting the Tribunal's award can only be challenged by appeal or, where title has issued, by an application for cancellation of title

Reasoning

The facts founding the application commenced in the Makuyu Land Disputes Tribunal and became a judgment of the court in Murang'a PM No 66 of 2005 by adoption under Section 7 of the Land Disputes Tribunals Act. The proper route to the High Court/ELC on pleadings from a lower court is an appeal. As the ruling of July 29, 2021 has been acted on (title allegedly issued), the Applicant must move the court for cancellation of title rather than by Notice of Motion.

p. 4
02

Liability of the trial court for adopting a Tribunal award made without jurisdiction

Holding

The trial court acted properly in adopting the award as at the time of adoption no appeal had been preferred

Reasoning

Section 7 of the Land Disputes Tribunals Act required the magistrate's court to enter judgment in accordance with the Tribunal's decision. The award was adopted on December 22, 2005, while the Appeals Committee's determination on jurisdiction came only on September 23, 2010. There was no order barring adoption, so the trial court cannot be faulted.

p. 4

Legal principles established

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  • A magistrate's court adopting a Land Disputes Tribunal award has no role other than to adopt the award where no order bars adoption, and cannot be faulted even if the Tribunal lacked jurisdiction
  • A Notice of Motion can only be filed in a properly and procedurally instituted suit

Court orders

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  1. 1.The Applicant's Notice of Motion Application dated August 11, 2021 is dismissed entirely
  2. 2.Costs of the application awarded to the 3rd Respondent
Jurisdiction invoked
Section 10 of the High Court (Organization and Administration) Act and Rules 15, 16 and 17 of the High Court (Practice and Procedure Rules) under the Judicature Act; Article 159(2)(d) of the Constitution

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, "Warui (Suing as the Personal Representative of Warui Muriu) v Chief Magistrate’s Court at Murang’a & 2 others (Environment and Land Miscellaneous Application 1 of 2022) [2023] KEELC 315 (KLR)", Case Analysis (2023). Miscellaneous Application dated August 11, 2021 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/315/eng@2023-01-26

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