Ngondi & another v Ngondi (Environment and Land Appeal E031 of 2023) [2025] KEELC 716 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated co-wives' land trust claim, ruling an old tribunal decision was void and trust claims never expire.
What this practically means
#Executive summary
#Key legal issues
#Res judicata and jurisdiction of the Land Disputes Tribunal
The Tribunal lacked jurisdiction under Section 3(1) of the Land Disputes Tribunal Act to decide issues of ownership/trust; its award was null and void ab initio and could not sustain a plea of res judicata
The Tribunal's mandate was confined to boundary disputes, claims to occupy or work land, and trespass. It went outside its mandate by deciding ownership, so it was not a 'competent Court' within Section 7 of the Civil Procedure Act. Moreover its award was never implemented, so there was in effect no decision capable of supporting res judicata.
Limitation of actions and trust claims
A claim founded on trust is not time-barred under the Limitation of Actions Act
The suit was based on customary trust; such claims are not time bound. Customary trust under Section 28 of the Land Registration Act, 2012 is an overriding interest not requiring notation on the register, and the Appellants bear the burden of proving the trust at trial.
Preliminary objection threshold
The preliminary objection constituted pure points of law and met the Mukisa Biscuits threshold, but succeeded only in part because the underlying grounds failed
Although the objection was on pure points of law and thus properly framed, the court found on re-evaluation that both grounds (res judicata and limitation) failed, requiring the impugned ruling to be set aside.
Legal principles established
#- A decision of a tribunal acting without jurisdiction is null and void ab initio and cannot found a plea of res judicata
- Claims predicated on trust are not subject to the limitation of actions
Court orders
#- 1.The Ruling by the Learned Principal Magistrate delivered on 3rd May 2023 is set aside
- 2.The suit is reinstated and ordered to be heard before any other Magistrate with jurisdiction other than Hon. Cheruto C. Kipkorir
- 3.Each party shall bear their own costs of the Appeal
- On appeal from
- Principal Magistrate's Court, Kerugoya (ELC)
- Kerugoya CM ELC No. E17 of 2022
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts (first appeal on facts and law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngondi & another v Ngondi (Environment and Land Appeal E031 of 2023) [2025] KEELC 716 (KLR)", Case Analysis (2025). ELC Appeal (Kerugoya) against Ruling in Kerugoya CM ELC No. E17 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/716/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.