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ELCPartially AllowedTransferred from HCCC No. 51 of 2011 (Nyeri High Court)· [2025] KEELC 3889 (KLR)

Mutune Substituted by Joseph Nderitu Thuita v Gitonga & another (Environment & Land Case 442 of 2014) [2025] KEELC 3889 (KLR)

Environment and Land Court
15 May 2025
JOJ.O. Olola
1,857 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles created through a Land Disputes Tribunal award, confirming tribunals cannot decide ownership of registered land.

What this practically means

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Executive summary

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This first-instance suit began in the Nyeri High Court as HCCC No. 51 of 2011 and was transferred to the Environment and Land Court at Mombasa in November 2014. The original plaintiff, Muchemi Mutune (since deceased and substituted by Joseph Nderitu Thuita), sought cancellation of the registration of parcels Thegenge/Kihora/7X1 and 7X2 so the land would revert to its prior position as Thegenge/Kihora/1X8 registered jointly in his and the 2nd Defendant's names, plus a declaration that the Land Disputes Tribunal lacked jurisdiction over title issues. He alleged he was the 1st Defendant's landlord and that the registration of the 1st Defendant was procured by fraud in collusion with the 2nd Defendant. The 1st Defendant claimed the land was gifted to him and that he financed the transaction; the 2nd Defendant relied on the sub-division pursuant to Nyeri CM Award Case No. 101 of 2000 and pleaded res judicata and abuse of process. The court traced the history of the two Tribunal awards, found they were distinct awards, and held - applying the Court of Appeal's decision in Joseph Malakwen Lelei - that the Tribunal had no jurisdiction under section 3 of the repealed Land Disputes Tribunal Act to determine title to registered land. Both awards were therefore nullities. The claim was allowed in terms of prayers (a) and (b), with no order as to costs.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over title to registered land

Holding

The Tribunal lacked jurisdiction to order sub-division of registered land or award registered land to a party; its awards were nullities

Reasoning

Section 3 of the repealed Land Disputes Tribunal Act confined Tribunals to disputes over division/boundaries of land, claims to occupy or work land, and trespass. Determination of title or ownership of registered land fell outside that mandate. Both awards relied on (the 2000 award leading to sub-division and the 2011 award in Tetu LDT Case No. 3 of 2010) involved title to registered land and were therefore made without jurisdiction and void.

p. 4
02

Res judicata defence based on Nyeri CM Award Case No. 101 of 2000

Holding

The defence failed because the award adopted in that case was a different award from the 2011 Tribunal award, and both awards were themselves nullities for want of jurisdiction

Reasoning

The court found that the award adopted on 5th January 2001 in Nyeri CM Award Case No. 101 of 2000 related to a dispute between the deceased and the 2nd Defendant over parcel 1X8, not the 2011 award in Tetu LDT Case No. 3 of 2010 between the deceased and the 1st Defendant. Both disputes originated from Tribunal decisions lacking jurisdiction, so they could not ground res judicata.

p. 3
03

Whether the Plaintiff proved his claim on the cancellation of titles

Holding

The Plaintiff proved his claim on a balance of probabilities and prayers (a) and (b) were granted

Reasoning

Having found that the sub-division and subsequent registrations emanated from Tribunal awards made without jurisdiction, the court was persuaded that the Plaintiff had proved the claim to a balance of probabilities. The alleged gift to the 1st Defendant was rejected, notably because the alleged donor denied the gift before the Tribunal itself.

p. 4

Legal principles established

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  • Land Disputes Tribunals under the repealed Land Disputes Tribunal Act had no jurisdiction to determine title to or ownership of registered land; proceedings and awards made without jurisdiction are null and void

Court orders

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  1. 1.The Plaintiff's claim is allowed in terms of prayers 'a' and 'b' of the Plaint dated 11th January, 2011, namely cancellation of the registration of land parcels L.R. Thegenge/Kihora/7X1 and 7X2 and reversion of the land to its prior position as L.R. Thegenge/Kihora/1X8 registered in the names of the Plaintiff and the 2nd Defendant as joint owners
  2. 2.A declaration that the Land Disputes Tribunal had no jurisdiction to entertain a matter touching on an issue of title deed
  3. 3.No order as to costs

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 3(1)

Cases cited (1)

  • Joseph Malakwen Lelei & Another -vs- Rift Valley Land Dispute Appeals Committee and 2 others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes, following transfer from the Nyeri High Court on 26th November, 2014

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, "Mutune Substituted by Joseph Nderitu Thuita v Gitonga & another (Environment & Land Case 442 of 2014) [2025] KEELC 3889 (KLR)", Case Analysis (2025). Transferred from HCCC No. 51 of 2011 (Nyeri High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3889/eng@2025-05-15

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