Francis Ngondoki M'Mugambi & 4 others v Abothuguchi/Kariene Land Disputes Tribunal & another
The bottom line
#Kenya's Environment and Land Court quashed a land tribunal award made after the tribunal law was repealed, confirming such awards are legally void.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Land Disputes Tribunal after repeal of the Land Disputes Tribunal Act on 30.8.2011
The 1st respondent had no jurisdiction to hear, determine and award after the Land Disputes Tribunal Act was repealed; the transitional saving under Section 30 ELC Act did not apply since no proceedings were pending as at 30.8.2011.
The court found the award was made on 3rd or 5th October 2011, after the Act's repeal on 30.8.2011. Section 30 of the ELC Act saved only pending proceedings; there were no pending proceedings or awards relating to the suit land as at the repeal date. Section 23(3) of the Interpretation and General Provisions Act could not revive anything not in existence at repeal. The Tribunal also lacked jurisdiction over titled land and ownership disputes.
Validity of the adoption of the Tribunal award by the 2nd respondent
The 2nd respondent could not adopt an award of a non-existent entity; the adoption was without jurisdiction and the decree was a nullity.
Since the 1st respondent ceased to exist on 30.8.2011 when Section 30 of the ELC Act repealed the Land Disputes Tribunal Act, the award it made in October 2011 was a nullity. Relying on Macfoy v United Africa Co Ltd, proceedings founded on a void act are themselves void, so the 2nd respondent's adoption of the award as a decree was equally flawed and without jurisdiction.
Whether the petition met the constitutional threshold under Articles 22, 23 and 40
The petition was pleaded with precision and raised a genuine constitutional question on the Article 40 right to property.
The court held that claims of statutory violation can raise constitutional questions where the impugned action entailed application of the Constitution or violation of the Bill of Rights. The petition pleaded with precision the violation of the Article 40 right to property by proceedings before a non-existent tribunal, and the respondents' substantive responses confirmed it met the threshold.
Limitation and delay
The petition was neither time-barred nor filed with unreasonable delay; the Limitation of Actions Act does not apply to constitutional petitions and the petitioners gave a plausible explanation for delay.
The petitioners stated on oath they only learned of the award upon service of a letter dated 8.6.2023, an assertion the respondents did not deny on oath. Section 4(4) of the Limitation of Actions Act and the 12-year execution period do not apply to constitutional petitions; each case is decided on its own merits and delay must be explained, which the court found was done.
Entitlement to judicial review remedies within a constitutional petition
Having found the respondents acted without jurisdiction, the petitioners were entitled to certiorari to quash the award and decree and prohibition against their enforcement.
The purpose of judicial review is to ensure inferior or quasi-judicial tribunals adhere to legality and procedural fairness. Since the court found the 1st and 2nd respondents acted without jurisdiction, the reliefs of certiorari and prohibition were merited, and the petitioners could not be penalized for opting for the constitutional petition route after 2010.
Legal principles established
#- A Land Disputes Tribunal has no jurisdiction over titled land and matters of ownership of registered land.
- An act done by a tribunal without jurisdiction is a nullity, and proceedings founded on it are equally void.
- The Limitation of Actions Act does not apply to constitutional petitions, though delay must be sufficiently explained.
- Repeal of a statute under Section 23(3) of the Interpretation and General Provisions Act does not revive anything not in force or existing at the time of repeal.
Court orders
#- 1.Certiorari to call and quash the proceedings, decision, award and decree of the respondents
- 2.Prohibition against the implementation and enforcement of the award and the subsequent decree of the 2nd respondent
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Article 165(3) of the Constitution and Section 3(3) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Ngondoki M'Mugambi & 4 others v Abothuguchi/Kariene Land Disputes Tribunal & another", Case Analysis (2024). Petition (Meru ELC) - as extracted, not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/249/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.