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ELCPartially AllowedELC Case (unspecified number)· [2023] KEELC 850 (KLR)

Omambia v Moinde (Environment & Land Case 520 of 2016) [2023] KEELC 850 (KLR)

Environment and Land Court
16 February 2023
JOJ.M. Onyango
1,995 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 cancelled land titles created through a Land Disputes Tribunal award because tribunals had no power to order sub-division of registered land.

What this practically means

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Executive summary

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The plaintiff sued the defendant, his brother, alleging forcible and illegal detention of land parcel Majoge/Bosoti/2380 and sought an order of eviction. The defendant denied the claim and counterclaimed, asserting he was the registered owner of the original parcel Majoge/Bosoti/1673, which he inherited from his father. He contended that an Ogembo Land Disputes Tribunal award of November 25, 2004 ordering sub-division of the parcel, adopted vide Kisii CM Miscellaneous Application No 62 of 2004, was beyond the Tribunal's statutory powers under the Land Disputes Tribunal Act, and that the plaintiff had subdivided the land while his appeal to the Kisumu Provincial Appeals Committee was pending. The court identified five issues and found it undisputed that the defendant was the registered owner of parcel 1673 and that it had been divided into parcels 2380, 2381 and 2382 pursuant to the Tribunal award. Relying on authorities including Macfoy v United African Company and ex parte decisions on Land Disputes Tribunals, the court held that the Tribunal acted ultra vires in ordering sub-division of registered land; its award was null and void ab initio, and the court's adoption could not sanitize it. The plaintiff's suit was dismissed. Judgment was entered on the counterclaim: the Tribunal decision and its adoption were declared null and void; the title to parcel 2380 and all other sub-divisions of 1673 were nullified and cancelled; the land was to revert to the defendant's name; the judgment was to apply mutatis mutandis to ELC Case No 522 of 2016 (Juma Moinde Casiano v Ratemo Moinde); and each party was to bear his own costs. Judgment dated, signed and delivered virtually on February 16, 2023 by J.M Onyango J.

Key legal issues

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01

Whether the Ogembo Land Disputes Tribunal had jurisdiction to order sub-division of registered land

Holding

The Tribunal acted ultra vires; its award and the court's adoption of it were null and void ab initio

Reasoning

The Land Disputes Tribunals Act did not confer power on tribunals to determine ownership of or order sub-division of registered land. The Tribunal's order over parcel 1673 exceeded its statutory powers. Following the ex nihilo nihil fit principle, the award was a nullity, and adoption vide Kisii CM Misc Application No 62 of 2004 could not cure it. That the defendant's appeal was never heard to conclusion did not validate the award.

p. 4
02

Whether the plaintiff's title to parcel 2380, derived from the nullified award, confers rights

Holding

No; the title and all sub-divisions of parcel 1673 were nullified and cancelled, with the property reverting to the defendant

Reasoning

Since the Tribunal's award was a nullity, the sub-division of parcel 1673 into parcels 2380, 2381 and 2382 and the titles issued pursuant to it had no legal foundation. Anything founded on a nullity is itself a nullity (Macfoy v United African Company). The court therefore nullified and cancelled the titles and ordered the land to revert to the defendant's name.

p. 4

Legal principles established

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  • A decision of a Land Disputes Tribunal ordering sub-division of registered land is ultra vires and a nullity; adoption by a court cannot sanitize it
  • A void act is a nullity and needs no order to set it aside; proceedings founded on it are also incurably bad

Court orders

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  1. 1.A declaration that the decision of the Ogembo Land Disputes Tribunal dated November 25, 2004 and its adoption vide Kisii CM Miscellaneous Application No 62 of 2004 as well as its consequential orders are null and void ab initio
  2. 2.The title for land parcel number Majoge/Bosoti/2380 and all other sub-divisions of parcel number Majoge/Bosoti/1673 are nullified and cancelled
  3. 3.The suit property shall revert to the name of Casiano Ratemo Moinde
  4. 4.The judgment shall apply to ELC Case No 522 of 2016 Juma Moinde Casiano v Ratemo Moinde mutatis mutandis
  5. 5.Each party shall bear his own costs

Authorities

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Legislation

  • Land Disputes Tribunal Act

Cases cited (6)

  • Republic v Kajiado Land Disputes Tribunal & others Ex-Parte Lilian Murunja
    Nairobi HC Misc Civil Application No 689 of 2001 (Unreported)
  • Animistic v Foreign Compensation
    1969 2 AC 147
  • R v Attorney Goldenberg Commission Ex parte Hon. Mwalulu
  • Republic v The Chairman, Mosocho Land Disputes Tribunal & others
    ELC Case No 91 of 2011
  • Republic v Chairman Borabu Land Disputes Tribunal & 2 Others Ex-parte Florence Nyaboke Machani
    (2014) eKLR
  • Macfoy v United African Company Limited
    (1961) ALL ER 1169
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcels Majoge/Bosoti/1673 and its sub-divisions

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, "Omambia v Moinde (Environment & Land Case 520 of 2016) [2023] KEELC 850 (KLR)", Case Analysis (2023). ELC Case (unspecified number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/850/eng@2023-02-16

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