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ELCDismissedKisumu ELC Appeal (from Kisumu CMC ELC No. 408 of 2018)· [2025] KEELC 758 (KLR)

Okwach (Legal representative of Solomon Okwach Masudi - Deceased) v Olilo (Environment and Land Appeal E023 of 2023) [2025] KEELC 758 (KLR)

Environment and Land Court
20 February 2025
4,199 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu confirmed that land registered after completed adjudication can be reclaimed through the courts, even after an earlier tribunal ruling said otherwise.

What this practically means

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Executive summary

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This is a first appeal from the Chief Magistrate's Court at Kisumu (Kisumu CMC ELC No. 408 of 2018), in which the Appellant, administrator of the estate of Solomon Okwach Masudi, challenged a judgment of 26 May 2023 that declared the Respondent the bona fide proprietor of Kisumu/Wathorego/1902 and ordered revocation of the title issued to the deceased. The Appellant argued that the trial court lacked jurisdiction: no written consent of the adjudication officer was obtained under section 30(1) of the Land Adjudication Act, and the matter had been determined when the Chief Magistrate's Court adopted a Land Disputes Tribunal award in Land Case No. 4 of 2002, invoking section 7 of the Civil Procedure Act as res judicata. The Respondent countered that the court had jurisdiction under the Environment and Land Court Act, that the Tribunal exceeded its jurisdiction under the repealed Land Disputes Tribunals Act, and that the suit was a fresh hearing ordered by the High Court in Kisumu HCC Appeal No. 112 of 2010. The court framed four issues and held that the section 30(1) consent was inapplicable because adjudication was completed in 1994, and that the Tribunal's decision, made without jurisdiction, was a nullity, so the decree adopting it could not found res judicata. The Respondent, as first registered owner on the strength of the adjudication process, proved his case. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the trial court had jurisdiction notwithstanding section 30(1) of the Land Adjudication Act

Holding

The consent requirement did not apply because the adjudication process was complete; the register was opened on 19 November 1994 and the land registered in the Respondent's name.

Reasoning

Section 30(1) bars institution of civil proceedings over land in an adjudication section until the adjudication register becomes final, unless the adjudication officer consents in writing. The court found the adjudication was completed by 1994, with the register opened and title issued, so the land was no longer subject to adjudication and the consent provision was inapplicable to the suit filed in 2018.

p. 6
02

Whether the prior decree adopting the Land Disputes Tribunal award barred the suit as res judicata

Holding

No bar arose because the Tribunal lacked jurisdiction over land ownership; its decision and the decree adopting it were nullities.

Reasoning

The Land Disputes Tribunal had no jurisdiction under section 3(1) of the Land Disputes Tribunals Act to award land ownership. Following Macfoy and the Court of Appeal in Chemei and Buti, a decision made without jurisdiction is void ab initio and cannot found res judicata, and a decree founded on a void act is itself bad and incurably bad. The High Court had also ordered a fresh hearing to determine the fate of the titles.

p. 6
03

Whether the Respondent proved his claim before the trial court

Holding

Yes; the Respondent proved he was the first registered owner following adjudication, and the transfer to the Appellant rested on a void Tribunal decision.

Reasoning

The Respondent produced a title deed and green card showing first registration in his name after the Land Adjudication Board confirmed the Committee's decision awarding him the land. The Appellant did not deny that the transfer to him was based on the Tribunal decision. The Tribunal having acted without jurisdiction, the subsequent removal of the Respondent's name and issuance of title to the Appellant were unlawful.

p. 8

Legal principles established

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  • Consent of the adjudication officer under section 30(1) of the Land Adjudication Act is only required where the adjudication register has not become final.
  • A decision of a tribunal acting without jurisdiction is a nullity, and no res judicata arises from a court decree adopting such a decision.
  • A judgment entered in terms of a Land Disputes Tribunal award may be challenged in fresh proceedings, including on grounds of lack of jurisdiction, fraud or mistake.
  • A first appellate court must reconsider and re-evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed.
  2. 2.Costs to the Respondent.
On appeal from
Chief Magistrate's Court at Kisumu (Kisumu CMC ELC No. 408 of 2018)
Kisumu CMC ELC No. 408 of 2018
Jurisdiction invoked
Sections 4 and 13(1) of the Environment and Land Court Act; first appeal from the magistrates' court

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, "Okwach (Legal representative of Solomon Okwach Masudi - Deceased) v Olilo (Environment and Land Appeal E023 of 2023) [2025] KEELC 758 (KLR)", Case Analysis (2025). Kisumu ELC Appeal (from Kisumu CMC ELC No. 408 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/758/eng@2025-02-20

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