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ELCDismissedMachakos ELCA (Memorandum of Appeal dated 28 August 2024)· [2026] KEELC 2590 (KLR)

Katona v Musyoka & another (Sued as the Personal Representatives of the Estate of the Late John Kilonzo Kioko - Deceased) (Environment and Land Appeal E041 of 2024) [2026] KEELC 2590 (KLR)

Environment and Land Court
5 May 2026
2,744 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Machakos Environment and Land Court dismissed a landowner's appeal, ruling that tribunal decisions made against a dead person are legally void.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Machakos against a magistrate's judgment delivered on 31 July 2024 in a trespass suit. The respondent, registered owner of parcel Matungulu/Katine/890 and step-brother of the appellant, sued for a permanent injunction over land the appellant occupied and cultivated. The appellant defended on the strength of a 2005 Land Disputes Tribunal decision adopted as a court judgment, which he said allocated a portion of the land to his family. The trial magistrate held that the tribunal case was untenable because the respondent had died in 2002 and allowed the claim. On appeal, Koross J first confirmed the appellant's right to issue new instructions to his law firm, dismissing the objection grounded on Order 9 Rule 9, and found no bias. The court then examined the law of trespass, noting that possession, not ownership, grounds the claim, though paper title prevails in competing claims. It concurred with the trial magistrate that the tribunal proceedings, filed after the respondent's death and without joinder of his estate, were a nullity contrary to audi alteram partem and Article 50. Further, Section 2 of the repealed Land Disputes Tribunals Act excluded land within an adjudication section, and the suit land remained subject to adjudication in 2005; the tribunal therefore lacked jurisdiction, rendering the proceedings null and void ab initio. The appeal was dismissed, the trial judgment upheld, and the appellant ordered to bear the respondent's costs of the appeal.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over the suit land

Holding

The tribunal lacked jurisdiction because the suit land was still subject to land adjudication and excluded under Section 2 of the Land Disputes Tribunals Act

Reasoning

Section 2 of the repealed Land Disputes Tribunals Act defines land as agricultural land but excludes land within an adjudication section. Evidence showed the land originated from an adjudication section, was registered on 8 May 1995 and title issued on 28 November 2014, so during the 2005 tribunal case it was subject to the Land Adjudication Act procedures and outside the tribunal's jurisdiction.

p. 6
02

Validity of tribunal proceedings against a deceased person

Holding

The tribunal proceedings were null and void ab initio because one objector (the respondent) died in 2002 before the case was filed in 2005 and his legal representatives were not joined

Reasoning

A suit against a deceased person is a nullity, as affirmed in Geeta Bharat Shah. Rule 3(3) of the Land Disputes Tribunals Rules required notice to be served on the objectors, and the deceased could not be heard. Orders against a non-party owner would also contravene Article 50 and the audi alteram partem rule.

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Duty of a first appellate court

Holding

The first appellate court will not interfere with the trial judgment unless satisfied the magistrate misdirected himself or wrongly exercised discretion causing injustice

Reasoning

Relying on Watt v Thomas as adopted in Chief Land Registrar v Nathan Tirop Koech, the court applied Order 42 Rule 32, deferring to the trial court's advantage of seeing and hearing witnesses on credibility.

p. 2
04

Alleged bias by the trial magistrate

Holding

No bias was observed in the proceedings or judgment

Reasoning

The court reviewed the record and found no basis for the bias ground; the ground premised on failure to consider submissions was a non-issue since submissions are merely arguments and the appellant had a fresh opportunity on appeal.

p. 3

Legal principles established

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  • A lawsuit filed against a deceased individual is null and void from the outset
  • Ownership is not a prerequisite for a trespass claim, but a person holding title prevails in competing possession claims
  • No person may be adversely bound by proceedings without being heard (audi alteram partem)

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The orders issued in the judgment rendered on 31 July 2024 are upheld
  3. 3.The appellant shall bear the respondent's costs of this appeal
On appeal from
Magistrates' Court (Machakos)
Suit arising from plaint dated 3 November 2020
Jurisdiction invoked
First appeal under Order 42 Rule 32 of the Civil Procedure Rules

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, "Katona v Musyoka & another (Sued as the Personal Representatives of the Estate of the Late John Kilonzo Kioko - Deceased) (Environment and Land Appeal E041 of 2024) [2026] KEELC 2590 (KLR)", Case Analysis (2026). Machakos ELCA (Memorandum of Appeal dated 28 August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2590/eng@2026-05-05

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