Kihea v Thairu & 2 others (Environment & Land Case 141 of 2017) [2024] KEELC 6294 (KLR)
The bottom line
#The Kajiado Land Court confirmed a title holder's ownership was valid because earlier tribunal and succession court decisions had no legal power to decide who owns land in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was res judicata by virtue of the Kajiado Land Disputes Tribunal decision adopted in SRMCC No. 35 of 2008 and the succession court ruling
The suit was not res judicata because the Tribunal lacked jurisdiction over ownership of titled land, rendering its decision and its adoption nullities, and the succession court relied solely on that void decision
Section 3(1) of the Land Disputes Tribunals Act limited tribunals to boundary disputes, claims to occupy or work land, and trespass; ownership of land was excluded. By the time of the Tribunal reference the Plaintiff held a title, whose cancellation was the exclusive province of the ELC under Section 26(1)(b) of the Land Registration Act. A void decision could not found res judicata, and the succession ruling merely adopted the void Tribunal decision without independent evidence.
Who is the lawful owner of Kajiado/Olchoro Onyore/3085
The Plaintiff, having purchased from Josiah Mueke and been issued a title on 18th December 2007, is the lawful owner
The Plaintiff produced sale agreements, Land Control Board consent, a transfer document and a green card showing registration on 18th December 2007. The vendor PW2 confirmed the sale and denied selling to the 1st Defendant's husband. The 1st Defendant's 1983 and 1986 agreements did not identify the land sold, and her registration and subsequent subdivision were effected without court order or the registered owner's participation, hence null and void.
Whether the 2nd Defendant acquired good title as purchaser of parcel 9171
The 2nd Defendant acquired no good title because the 1st Defendant had none to pass; the 2nd Defendant may pursue damages against the 1st Defendant
The 2nd Defendant's title derives from the 1st Defendant's void registration following the null Tribunal decision. Although the 2nd Defendant claimed to be a purchaser for value, its title flowed from an unlawful root, so it could not be protected.
Legal principles established
#- The Land Disputes Tribunals had no jurisdiction to determine ownership of, or cancel a title to, land; such a determination and its adoption by a magistrate's court are a nullity
- A probate court has no jurisdiction to determine ownership disputes over land; only the Environment and Land Court has jurisdiction over such disputes
- Res judicata requires a prior determination by a court of competent jurisdiction
Court orders
#- 1.A declaration that the Plaintiff is the legal owner of the original title No. Kajiado/Olchoro Onyore/3085 which has been subdivided into Kajiado/Olchoro Onyore/1971 and Kajiado/Olchoro Onyore/9172
- 2.An order directing the Land Registrar to cancel the titles issued to the 1st and 2nd Defendants over sub-divisions LR Kajiado/Olchoro Onyore/9171 and 9172 (original 3085) and register the same in the Plaintiff's name within ninety (90) days
- 3.An order directing the Land Registrar to rectify the register to reflect the Plaintiff as registered owner of Kajiado/Olchoro Onyore 9171 and 9172 (original 3085) within ninety (90) days
- 4.Costs of the suit borne by the Defendants
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihea v Thairu & 2 others (Environment & Land Case 141 of 2017) [2024] KEELC 6294 (KLR)", Case Analysis (2024). ELC 141 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6294/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.