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ELCDismissedNot stated in judgment (Plaint dated 10th July 2019)· [2023] KEELC 494 (KLR)

Kambi & 3 others v Chome & 9 others (Environment & Land Case 54 of 2019) [2023] KEELC 494 (KLR)

Environment and Land Court
30 January 2023
MOM.A. Odeny
2,954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a land dispute because an earlier tribunal award, already adopted as a court judgment, still stands and must be challenged on appeal, not by a fresh suit.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of parcels Kilifi/Roka/932, 943 and 944 acquired through the Tezo/Roka Settlement Scheme adjudication, sued for injunction, eviction, removal of restrictions and cancellation of entries. The Defendants counterclaimed, relying on a Bahari Land Disputes Tribunal award (Claim No. 17 of 2004) directing the six family plots to be subdivided into equal portions of 9 acres for the widows of the late Paul Kambi Ngala. That award was upheld by the Provincial Land Appeals Committee, adopted as a judgment of the Kilifi SRM's Court on 30th March 2006, and an appeal against it filed in the High Court at Malindi (HCCA No. 28 of 2009) was never prosecuted. The Plaintiffs argued the Tribunal lacked jurisdiction over ownership and succession issues, rendering the award a nullity, and relied on authorities on the sanctity of registered titles, proof of trust, removal of restrictions, and adverse possession. The Defendants argued the suit was res judicata and that the adopted award remained valid and unimpeached. Applying Munga Mbodi Mwenda v Muguza Jangwata Jindwa, Odeny J held that where a Tribunal award has been adopted by a subordinate court, the ELC can only deal with the same issues as an appellate court, and the Plaintiffs' proper remedy was the abandoned High Court appeal. The court found it had no jurisdiction, dismissed both the suit and the counterclaim, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the Environment and Land Court had jurisdiction to hear a fresh suit on ownership of the suit parcels where a Land Disputes Tribunal award, upheld by the Provincial Land Appeals Committee and adopted as a judgment of the court, remains unimpeached

Holding

The court had no jurisdiction; the proper avenue was the appeal filed in the High Court at Malindi (HCCA No. 28 of 2009) which the Plaintiffs abandoned and never prosecuted.

Reasoning

The Plaintiffs' grievance was against the Tribunal award as adopted by the Kilifi SRM's Court. That award was not set aside and the appeal challenging it, filed in the High Court, was never prosecuted. The Plaintiffs alleged the Tribunal lacked jurisdiction, but that question belonged in the appeal. Filing a fresh suit with concurrent jurisdiction over the same dispute was impermissible.

p. 6
02

Effect of a pending appeal while a fresh suit is filed in a court with concurrent jurisdiction

Holding

Where the same issues have been dealt with and decided by a Land Disputes Tribunal and adopted by a subordinate court, the ELC can only deal with those issues as an appellate court and not otherwise.

Reasoning

Following Angote J in Munga Mbodi Mwenda, an adopted Tribunal award remains valid even where an appeal is pending, and upon repeal of the Land Disputes Tribunals Act pending appeals were to be transferred to the ELC. A fresh suit cannot circumvent that appellate process.

p. 7

Legal principles established

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  • A Land Disputes Tribunal award adopted as a judgment of the court remains valid and subsisting until set aside; a fresh suit cannot be used to challenge it when the proper course was an appeal
  • Where the same issues were decided by a Land Disputes Tribunal and adopted by a subordinate court, the Environment and Land Court can deal with those issues only as an appellate court, not by way of a fresh suit

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.The Defendants' counterclaim is dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSections 24, 25, 26
  • Land Registration ActSection 78(2)
  • Civil Procedure RulesOrder 21(1)
  • Land Disputes Tribunal ActRepealed (referred to generally)

Cases cited (8)

  • Propwa Company Limited v Justus Nyamo Gatondo & another
    [2020] eKLR
  • Juletabi African Adventure Limited & another v Christopher Michael Lockley
    [2017] eKLR
  • David Macharia Kinyuru v District Land Registrar, Naivasha & another
    [2017] eKLR
  • C K Bett Traders Limited & 2 others v Kennedy Mwangi and another
    (2020) eKLR
  • Moses Makokha Osanya v Elekia Mabosio Marenga
    [2018] eKLR
  • Joseph Karobia Gicheru v Michael Gachoki Gicheru
    [2013] eKLR
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Munga Mbodi Mwenda v Muguza Jangwata Jindwa & another
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land proprietorship disputes (court declined jurisdiction given subsisting adopted Tribunal award)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kambi & 3 others v Chome & 9 others (Environment & Land Case 54 of 2019) [2023] KEELC 494 (KLR)", Case Analysis (2023). Not stated in judgment (Plaint dated 10th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/494/eng@2023-01-30

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