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ELCDismissedEnvironment and Land Appeal E12 of 2022· [2023] KEELC 20847 (KLR)

Muchiri & another v Muchiri & another

Environment and Land Court
27 September 2023
LOL. A. Omollo
4,878 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that once a Land Disputes Tribunal award is adopted as a court judgment, magistrates cannot set it aside through a fresh suit.

What this practically means

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Executive summary

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The appellants, registered owners of Mau Summit/Molo Block 5/1347 and 1348, sued in the ELC at Nakuru (ELC 70 of 2019) seeking declarations that the Molo Land Disputes Tribunal proceedings of 2008, the adoption of its award by the Molo court, and the consequent cancellation of their titles were irregular, illegal and void, together with orders restoring their registration and a permanent injunction. The ELC transferred the suit to the Chief Magistrate's Court at Molo, where the learned magistrate (E.G Nderitu, CM) struck out the suit on 15 March 2022, holding she lacked jurisdiction: the Tribunal award had been adopted as a judgment and a decree issued, and the Land Disputes Tribunal Act provided avenues of challenge - appeal to the Provincial Appeals Committee or judicial review - which did not include a fresh suit in the magistrate's court. On appeal, Omollo J framed a single issue: whether the magistrate erred in finding she had no jurisdiction. The court held that jurisdiction may be raised at any stage, even by the court itself, relying on Lillian S and the NSSF case; that pleadings' concessions cannot confer jurisdiction; and that a magistrate cannot review, alter or set aside an adopted Tribunal award, citing Mutoro, the Muranga judicial review decision and Ouma Mitai. The transfer from the ELC did not cure the jurisdictional defect. The appeal was dismissed with no order as to costs, the parties being siblings.

Key legal issues

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01

Timing of raising jurisdiction

Holding

Jurisdiction may be raised at any stage, even by the court suo motu and even for the first time on appeal or in the Supreme Court

Reasoning

Relying on Owners of the Motor Vessel 'Lillian S' and National Social Security Fund Board of Trustees v Kenya Tea Growers Association, the court held jurisdiction is a threshold matter going to competence, raisable by any party or the court at any stage. The appellants' complaint that the magistrate raised jurisdiction only at judgment therefore failed.

p. 7
02

Effect of transfer of suit from ELC to magistrate's court

Holding

Transfer of a suit to the magistrate's court did not confer jurisdiction where the magistrate's court could not grant the prayers sought

Reasoning

The judge noted the ELC judge transferred the suit without the benefit of interrogating facts and evidence as the magistrate later did. The magistrate correctly found the suit, being a challenge to an adopted Tribunal award and decree, could not be entertained by way of a fresh suit clothed as an ordinary land claim.

p. 9
03

Avenues for challenging a Land Disputes Tribunal award

Holding

The proper avenues were appeal to the Provincial Appeals Committee or judicial review, not a fresh suit in the magistrate's court

Reasoning

Citing Christopher Wafula Mutoro and Peter Ouma Mitai, the court affirmed that section 7(2) of the Land Disputes Tribunal Act compelled the magistrate to adopt the award without power to review it, and that rights accrued under the repealed Act survived under section 23(3) of the Interpretation and General Provisions Act.

p. 10

Legal principles established

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  • A question of jurisdiction may be raised at any stage of proceedings, including by the court itself, though best raised at the earliest opportunity
  • Consent or admission of parties in pleadings cannot confer jurisdiction on a court
  • A magistrate's court cannot set aside, review or interfere with a Land Disputes Tribunal award adopted as a judgment; the remedy lies in appeal to the Provincial Appeals Committee or judicial review in the High Court

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 169(1)(a), 169(2)
  • Magistrate's Court Act, 2015Sections 7(1), 9(a)
  • Environment and Land Court ActSections 13(1), 26(3), 26(4)
  • Land Disputes Tribunal Act (repealed)Sections 3, 7(1), 7(2), 8(1)
  • Interpretation and General Provisions ActSection 23(3)

Cases cited (12)

  • Dan Maurice Hays vs County Government of Siaya
    (2021) eKLR

    Jurisdiction is imposed by statute or constitution and cannot be conferred by consent of parties

  • Owners of the Motor Vessel 'Lillian S' Vs Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction is everything; a court must down tools once it finds it lacks jurisdiction

  • National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others
    (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR)

    Jurisdiction is a threshold matter raisable at any stage by any party or the court

  • Christopher Wafula Mutoro -vs- Richard Lordia Lokere
    [2017] eKLR

    Repeal of the Land Disputes Tribunal Act did not extinguish accrued rights; ELC has jurisdiction over pending appeals

  • Patrick Ndegwa Munyua vs Benjamin Kiiru Mwangi & another
    [2020] eKLR

    Gazetted magistrates with pecuniary jurisdiction may handle title and occupation of land claims

  • Zedekiah M Mwale Vs. Bikeke Farm Directors & Another
    Kitale HCCA No. 25 of 1998

    Cited with approval Republic v Resident Magistrate Muranga on magistrate's inability to interfere with Tribunal awards

  • Republic Vs Resident Magistrate - Muranga & another Exparte Mary Wanja Kioga
    [2016] eKLR

    A magistrate has no jurisdiction to alter, amend, set aside or review a Land Disputes Tribunal award filed in court

  • Peter Ouma Mitai vs. John Nyarara
    Kisii HCCA No. 297 of 2005

    Section 7(2) leaves no room for magistrate to review a Tribunal award; remedies are appeal or judicial review

  • Harun Kiptarus Tanui Vs East African Portland Cement Plc
    (2022) eKLR

    Cited by appellants on jurisdiction being raised at the earliest opportunity

  • John Mwangi Karanja Vs Alfred Ndiangui
    (2011) eKLR

    Cited with approval in Tanui; relied on by appellants

  • Pamoja Women Development Program & 3 others vs Jackson Kihimbu Wangombe & Another
    (2016) eKLR

    Cited by appellants on injustice of striking out a suit filed in the correct forum

  • Henry Kigen & 6 others VS Baringo County Governor & 2 others
    (2020) eKLR

    Cited by appellants approving Pamoja Women Development Program

On appeal from
Chief Magistrate's Court, Molo
Molo CMCC ELC 58 of 2019
Jurisdiction invoked
Appeal from the subordinate court under the Environment and Land Court Act; Article 169(1)(a) and (2) of the Constitution, Section 26 of the Environment and Land Court Act and Section 9(a) of the Magistrate's Court Act considered

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, "Muchiri & another v Muchiri & another", Case Analysis (2023). Environment and Land Appeal E12 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20847/eng@2023-09-27

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