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ELCPartially AllowedPetition (Environment and Land Court), filed 28th January 2019· [2025] KEELC 8336 (KLR)

Ayuko & 2 others v Njue & 2 others (Environment and Land Petition 1 of 2019) [2025] KEELC 8336 (KLR)

Environment and Land Court
27 November 2025
MKMohammed N. Kullow
2,247 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled illegally created land titles and ordered the Migori Land Registrar to restore the family's original parcel.

What this practically means

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Executive summary

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The Petition, filed on 28th January 2019 by Lucas J. Ayuko, Loice Atieno Ayuko and Erastus Joseph Onyango, challenged the subdivision and transfer of a 0.41-acre portion of their land, L.R. No. Kanyamkago/Kawere II/1198, into L.R. Nos. Kanyamkago/Kawere II/6708 and 6709 in favour of the 1st and 2nd Respondents. The subdivision was effected by the 3rd Respondent, the Migori County Land Registrar, on 17th October 2018 on the strength of a decree adopted in Migori SRM Misc. Application No. 28 of 2006 arising from an Uriri Land Disputes Tribunal award. That award and decree had been quashed by the High Court at Kisii in Misc. Application (JR) No. 13 of 2008, Muchelule J. having held that the tribunal lacked jurisdiction over registered land under section 3(1) of the repealed Land Disputes Tribunal Act. The 1st and 2nd Respondents filed no response and repeatedly failed to attend, frustrating court-annexed mediation before the Registrar. The Court framed two issues: the lawfulness of the subdivision and transfer, and the entitlement to remedies. Applying Macfoy v United Africa Co. Ltd, Kullow J. held that a proceeding without jurisdiction is a nullity; once quashed, no lawful instrument supported the Registrar's action, which was ultra vires, especially as the award directed only a re-survey, not subdivision or transfer. The Court declared the subdivision violated Articles 40 and 47, cancelled the resultant titles, ordered restoration of the original parcel in the Petitioners' names, declined general damages for want of quantification, and ordered each party to bear their own costs.

Key legal issues

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01

Legality of the subdivision and transfer founded on a quashed tribunal decree

Holding

The subdivision and creation of L.R. Nos. 6708 and 6709 were unlawful, unprocedural and without jurisdiction, since the decree relied upon had been quashed and was a nullity

Reasoning

The Uriri Land Disputes Tribunal award and the decree adopted in Migori SRM Misc. Application No. 28 of 2006 were quashed by the High Court in Kisii JR No. 13 of 2008 for want of jurisdiction over registered land. That decision was never set aside. A proceeding without jurisdiction is a nullity incapable of conferring rights; accordingly nothing lawful remained on which the Registrar could act, and the subdivision effected in 2018 was void.

p. 4
02

Whether the Land Registrar acted ultra vires the tribunal award

Holding

Even assuming the award was valid, it directed only a re-survey to confirm acreage, not a subdivision or transfer; the Registrar acted outside any purported directive

Reasoning

The impugned award merely directed a re-survey of the parcels to confirm acreage and resolve boundary confusion. It did not direct a subdivision or authorise transfer of ownership to the 1st and 2nd Respondents. Creating new titles therefore required a lawful basis which did not exist, making the Registrar's action ultra vires.

p. 3
03

Infringement of Article 40 property rights and Articles 47 and 50 fair administrative action and fair hearing

Holding

The Petitioners' constitutional rights were infringed: their title was interfered with without notice, hearing or lawful process, in contradiction of a superior court decision

Reasoning

The Petitioners were neither notified nor afforded a hearing before the subdivision and transfers were effected, and the Registrar relied on a decree of no legal force. Interference with registered proprietary rights without lawful process violated Article 40 and the protections of Sections 24, 25 and 26 of the Land Registration Act, and breached the fair administrative action standards demanded by Article 47.

p. 4
04

Entitlement to remedies

Holding

The void titles were cancelled and the original parcel restored; general damages were refused

Reasoning

Since the titles were founded on a void process, the Court, under Articles 23 and 162(2)(b) and the Environment and Land Court Act, had jurisdiction to cancel them and reinstate the original registration. Restoration was the primary and most effective remedy; general damages were not granted because no material on quantifiable loss or personal injury was adduced.

p. 4

Legal principles established

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  • A proceeding undertaken without jurisdiction is a nullity from the outset, incapable of conferring rights or imposing obligations, and any action founded on it is equally void
  • A public officer cannot lawfully enforce or revive a decree that has been quashed as a nullity
  • Where the substratum of a subdivision is legally indefensible, the Court may cancel the resultant titles and restore the registration regime to its prior lawful status

Court orders

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  1. 1.A declaration that the subdivision and transfer of the Petitioners' land, resulting in L.R. Nos. Kanyamkago/Kawere II/6708 and 6709, violated Articles 40 and 47 of the Constitution
  2. 2.A declaration that the 3rd Respondent acted without lawful authority in relying on a decree quashed in Kisii High Court Misc. Application (JR) No. 13 of 2008
  3. 3.Titles L.R. Nos. Kanyamkago/Kawere II/6708 and 6709 cancelled
  4. 4.The Migori County Land Registrar to forthwith restore L.R. No. Kanyamkago/Kawere II/1198 in its original acreage and in the names of the Petitioners
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Constitution of Kenya, 2010Articles 23 and 162(2)(b)
  • Land Registration ActSections 24, 25 and 26
  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Environment and Land Court Actnot specified

Cases cited (2)

  • Macfoy v United Africa Co. Ltd
    [1961] 3 All ER 1169
  • Ocean View Plaza Ltd v Attorney General
    KLR E&L 475–478
On appeal from
null
null
Jurisdiction invoked
Articles 23, 162(2)(b) of the Constitution and the Environment and Land Court Act

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, "Ayuko & 2 others v Njue & 2 others (Environment and Land Petition 1 of 2019) [2025] KEELC 8336 (KLR)", Case Analysis (2025). Petition (Environment and Land Court), filed 28th January 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8336/eng@2025-11-27

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