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ELCPartially AllowedNot stated in the judgment (arising from Eastern Provincial Land Dispute Tribunal Appeal No. 56 of 2007)· [2024] KEELC 504 (KLR)

Ngala v Kitete & another (Environment and Land Appeal 1 of 2018) [2024] KEELC 504 (KLR)

Environment and Land Court (High Court of Kenya) - first appeal from Land Disputes Tribunal proceedings
31 January 2024
2,547 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court voided two land tribunal decisions because they decided who owns land, a power tribunals never had.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court against the decision of the Eastern Provincial Land Dispute Tribunal Appeals Committee of 7 June 2007, which had allowed an appeal from the Wote District Land Disputes Tribunal and ordered that the Appellant be given back shamba No. 225 (Nzaui/Kawala/225). The Appellant, through an amended memorandum of appeal and written submissions, contended that the Tribunal and Appeals Committee exceeded their jurisdiction under section 3(1) of the repealed Land Disputes Tribunal Act by determining ownership of registered land rather than a boundary, occupation or trespass claim; that the claim, arising from events in 1944 but filed in 2005, was statute-barred; that the Committee purported to cancel a first registration contrary to section 143 of the Registered Land Act; and that the appeal before the Committee was prosecuted by Joseph Mutua Kitete who was not the original Claimant. The Respondents maintained that the dispute was a boundary/occupation matter within the Tribunal's mandate and that the Kithitu oath issue concerned procedure only. The court framed the principal issue as jurisdiction, holding that jurisdiction flows from the Constitution or legislation and cannot be assumed. Relying on the Court of Appeal decisions in Joseph Malakwen Lelei and M'Marete, it found the dispute was in reality one of ownership of land couched as a boundary dispute, outside the Tribunal's statutory remit. The Tribunal and Appeals Committee were held to have acted ultra vires, rendering their decisions nullities. The appeal was allowed, the decisions of both the Appeals Committee and the Wote Land Disputes Tribunal were set aside, and each party was directed to bear its own costs in the appeal and in the proceedings before the Tribunal and Appeals Committee.

Key legal issues

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01

Whether the Tribunal and Appeals Committee exceeded their jurisdiction by determining ownership of land parcel Nzaui/Kawala/225

Holding

The Tribunal and Appeals Committee acted ultra vires; their decisions were a nullity because they determined ownership of land, a matter outside section 3(1) of the Land Disputes Tribunal Act, the dispute being merely couched as a boundary dispute.

Reasoning

Section 3(1) of the repealed Land Disputes Tribunal Act confined tribunals to division/boundary disputes, claims to occupy or work land, and trespass. The pleadings and proceedings showed the real issue was ownership of parcel Nzaui/225. Relying on Joseph Malakwen Lelei and M'Marete, the court held that tribunals cannot determine title to registered land, and a decision rendered without jurisdiction is void ab initio.

p. 6
02

Rectification/cancellation of first registration

Holding

The Appeals Committee's order that the Appellant's first registration be cancelled and the land registered in the Respondents' names was contrary to the protections of first registration under the Registered Land Act, though the court's primary basis was lack of jurisdiction.

Reasoning

The Appellant argued that the land was first registered in his favour and could not be cancelled or amended under section 143 of the Registered Land Act. The court did not make a standalone finding on this ground, but since the Tribunal and Appeals Committee lacked jurisdiction, all their orders, including the cancellation of the first registration, fell away as nullities.

p. 2

Legal principles established

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  • Jurisdiction of a court or tribunal flows from the Constitution and/or legislation and cannot be conferred by parties or assumed by the tribunal itself.
  • Where a court or tribunal exercises a jurisdiction it does not possess, its proceedings and decisions are a nullity and every resulting award is void.
  • Land Disputes Tribunals under the repealed Act had jurisdiction limited to division/boundary disputes, claims to occupy or work land, and trespass - not determination of title to or ownership of registered land.

Court orders

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  1. 1.The decisions of the Provincial Land Dispute Appeals Committee and the Wote Land Disputes Tribunal are hereby set aside.
  2. 2.Each party to bear its own costs in the instant Appeal and costs in the proceedings before the Tribunal and Appeals Committee.

Authorities

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Legislation

  • Land Disputes Tribunal Act (now repealed)Section 3(1)
  • Land Disputes Tribunal Act (now repealed)Section 3(1)(b)
  • Land Disputes Tribunal Act (now repealed)Section 13(3)
  • Limitation of Actions ActSection 7
  • Registered Land ActSection 143

Cases cited (5)

  • Joseph Malakwen Lelei & another vs Rift Valley Land Disputes Appeals Committee & 2 others
    [2014] eKLR
  • M'Marete vs Republic & 3 others
    [2004] eKLR
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank & 2 Others
    [2012] eKLR
  • Wamwea vs Catholic Diocese of Muranga Registered Trustees
    (20-03) KLR 389
  • Ndeto Kimono vs Mavoi Musomba (also referred to as Kavoi Musomba)
    Civil Appeal No. 29 of 1976; [1977] eKLR
On appeal from
Eastern Provincial Land Dispute Tribunal Appeals Committee (upon the award of the Wote District Land Disputes Tribunal in Makueni Land Dispute Tribunal Case No. 8 of 2005)
Eastern Provincial Land Dispute Tribunal Appeal No. 56 of 2007
Jurisdiction invoked
First appellate jurisdiction over decisions of the Land Disputes Tribunal Appeals Committee under the Land Disputes Tribunal Act (now repealed)

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, "Ngala v Kitete & another (Environment and Land Appeal 1 of 2018) [2024] KEELC 504 (KLR)", Case Analysis (2024). Not stated in the judgment (arising from Eastern Provincial Land Dispute Tribunal Appeal No. 56 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/504/eng@2024-01-31

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