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ELCPartially AllowedThika ELC Appeal (transferred from Nyeri Provincial Land Disputes Appeals Committee; originally Githunguri Land Disputes Tribunal Case No 16/20/9/2010)· [2024] KEELC 1477 (KLR)

Njau & another v Mburu (Environment and Land Appeal 47B of 2023) [2024] KEELC 1477 (KLR)

Environment and Land Court
28 February 2024
BEB M Eboso
2,985 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a second wife's customary right to live on and farm family land, but cancelled a tribunal's attempt to cancel land titles.

What this practically means

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Executive summary

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This first-instance appeal, transferred from the defunct Nyeri Provincial Land Disputes Appeals Committee to the Environment and Land Court at Thika following the repeal of the Land Disputes Tribunals Act, 1990, challenged the award of the Githunguri Land Disputes Tribunal rendered on 22 June 2010. The Tribunal had ordered cancellation of the titles to Githunguri/Githunguri/2214 and Sipili/Ndonyoloip Block 2/4408 (Mutukanio), registration of both parcels in the names of Solomon Mburu Njau and his two wives as trustees of their children, and equal use of both lands. The appellants (Solomon and his first wife, Elizabeth) contended the Tribunal exceeded its jurisdiction under Section 3(1) of the repealed Act by cancelling registered titles. The respondent (Eunice, the second wife) argued the claim fell within the Tribunal's jurisdiction and that she was entitled to a share of the ancestral land where she had lived for 27 years. Justice B M Eboso framed three issues: excess of jurisdiction, whether the respondent established a claim to occupy or work the land, and costs. The court held that the first, second and third limbs of the award exceeded jurisdiction, since Tribunals could not cancel registered titles; it also exceeded jurisdiction by awarding relief over the Mutukanio parcel, which the respondent had never claimed. However, the fourth limb was upheld in varied form: Eunice and her eight children have a customary right to occupy and work the portion of Githunguri/Githunguri/2214 they occupied before eviction. The appeal partially succeeded, with each party bearing their own costs.

Key legal issues

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01

Whether the Githunguri Land Disputes Tribunal acted in excess of its jurisdiction

Holding

The first, second and third limbs of the award (cancellation of titles and registration of the parcels in the names of the parties as trustees) exceeded jurisdiction; the Tribunal also exceeded jurisdiction by awarding relief over Sipili/Ndonyoloip Block 2/4408 which the respondent had never claimed. Only the fourth limb (right to occupy and work the land) was within jurisdiction.

Reasoning

Section 3(1) of the repealed Act confined Tribunals to disputes over division of/boundaries to land, claims to occupy or work land, and trespass. Cancellation of registered titles was reserved to courts under land registration statutes. The award ordered cancellation of titles and registration as trustees, which was beyond Section 3(1). Further, the respondent's claim related only to Githunguri/Githunguri/2214, so any award over the Mutukanio parcel was also ultra vires.

p. 5
02

Whether the respondent established a claim to occupy or work on the two parcels

Holding

She established a customary right to occupy and work Githunguri/Githunguri/2214, where she and her eight children lived and farmed, but no claim or evidence regarding the Mutukanio parcel.

Reasoning

Evidence before the Tribunal showed both families of the polygamous marriage lived and had their homes on Githunguri/Githunguri/2214 and cultivated it. That common occupation and use gave Eunice and her children a customary right to continue occupying and working the portions they occupied. No such evidence existed for the Mutukanio parcel. Questions of the registration of Elizabeth as sole proprietor must be litigated in a proper suit.

p. 6

Legal principles established

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  • Land Disputes Tribunals had no jurisdiction to cancel registered titles; such jurisdiction vested in the courts under the land registration statutes
  • A Tribunal is confined to the parcel and claim actually placed before it

Court orders

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  1. 1.The first, second and third limbs of the award dated 22/6/2010 in Githunguri Land Disputes Tribunal Case No 16/20/9/2010 (cancellation of titles and registration of the two parcels in the names of the three parties as trustees) are set aside as made in excess of jurisdiction
  2. 2.The fourth limb is varied to read that Eunice Wanjiru Mburu and her eight children have a customary right to occupy and work on the portion of Githunguri/Githunguri/2214 which she occupied and worked on prior to her eviction from the land
  3. 3.Parties shall bear their respective costs of this appeal

Authorities

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Legislation

  • Land Disputes Tribunals Act, 1990 (repealed)Sections 3(1), 3(7), 3(8), 4(1), 8
  • Environment and Land Court Act, 2011
  • Registered Land Act (repealed)Section 159
  • Matrimonial Properties ActSection 6
  • Constitution of Kenya, 2010Articles 43(3), 45(3)

Cases cited (4)

  • Michael Thiongo Gatete v Attorney General & 4 Others
    [2017] eKLR
  • Joseph Kirugu Njuguna v Land District Tribunal Maragua & 2 Others
    [2016] eKLR
  • PNN v ZWN
    [2017] eKLR
  • Republic V Chairman, Lurambi Land Disputes Tribunal & 2 others
    [2006] eKLR
On appeal from
Nyeri Provincial Land Disputes Appeals Committee (hearing appeal from Githunguri Land Disputes Tribunal)
Githunguri Land Disputes Tribunal Case No 16/20/9/2010
Jurisdiction invoked
Environment and Land Court Act, 2011 (appeal transferred from the defunct Provincial Land Disputes Appeals Committee pursuant to ruling in Thika ELC Misc Application No 58 of 2019)

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, "Njau & another v Mburu (Environment and Land Appeal 47B of 2023) [2024] KEELC 1477 (KLR)", Case Analysis (2024). Thika ELC Appeal (transferred from Nyeri Provincial Land Disputes Appeals Committee; originally Githunguri Land Disputes Tribunal Case No 16/20/9/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1477/eng@2024-02-28

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