Ongwae & another v Ongwae & 11 others (Environment and Land Appeal E010 of 2023) [2026] KEELC 2028 (KLR)

JUDGMENT 1. The background of litigation leading to this appeal is that on 2nd April 2009, the Chairman of the defunct Borabu Land Disputes Tribunal commenced proceedings in Kisii CM Misc Application No. 32 of 2009 when he filed Notice of Motion dated 2nd April 2009, through which he sought adoption of the said tribunal’s award dated 10th February 2009 in Borabu Land Disputes Tribunal Case No. 3 of 2008. The Chairman was the Applicant while Teresa Kerubo Ongwae, Milka Moraa Ongwae and Francis Ongwae Manoti were the First to Third Respondents, respectively, in the miscellaneous application. There were no other parties in the miscellaneous cause at that point. 2. The parties in Borabu Land Disputes Tribunal Case No. 3 of 2008 were Teresa Kerubo Ongwae and Milka Moraa Ongwae as First and Second Plaintifis, respectively while Francis Ongwae Manoti was the Defendant. The tribunal’s award was adopted on 12th May 2009 and a decree issued. 3. The decree read thus: 1. That the ruling of Borabu land disputes tribunal Case No.3 of 2008 is hereby adopted as the judgment of the court. 2. The court ruled that Francis Ongwae Manoti who is the defendant did not follow the right procedure in selling the land. 3. That the sale of land is hereby cancelled for the sake of the children’s welfare and the transactions are now null and void. 4. The buyers to move away from the plots in front of the houses of the wives of the defendant who are: - Milka Moraa Ongwae - ID No. 5818356 and Teresa Kerubo Ongwae - ID No. 642843. Their plots to remain as they were before they were chased by their husband, Francis Ongwae Manoti ID No. 1642846, who is the Defendant. 5. The land disputes tribunal requests the honourable court to accept Joint Title Deed for the plot/parcel number Gesima Settlement Scheme/271 to read Teresa Kerubo Ongwae, Milka Moraa Ongwae and Francis Ongwae Manoti. 4. Beyond the adoption of the tribunal’s award, the miscellaneous cause took a life of its own and became decidedly litigious. Among other developments, Milka Moraa Ongwae who is the Second Appellant herein filed an application by way of Chamber Summons dated 10th May 2013, seeking an order that the Ninth, Sixth, Eighth, Second, Tenth, Fifth, Twelfth and Third Respondents herein as well as one Robert Mokaya Mamboleo be joined in the miscellaneous cause as Interested Parties, among other reliefs. The Subordinate Court allowed the joinder on 16th May 2013. 5. The matter was later transferred to Nyamira Chief Magistrates where it became Nyamira CM Misc Application No. 1 of 2020. 6. Further, on 6th July 2021, the Subordinate Court adopted a consent dated 29th June 2021, written on the letterhead of Bosire Gichana & Co. Advocates, which was in the following terms: We refer to the above mentioned matter in which the firm of BOSIRE GICHANA & CO. ADVOCATES appear for the Applicant and the firm of M.K ANG’ASA & CO. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2028/eng@2026-04-15 2

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ADVOCATES appear for the Respondent. We shall be grateful if you kindly record the following consent between the parties excluding the interested parties. By consent of counsel of the said parties let the application dated 10th May, 2013 be allowed on the following terms: 1. “THAT the judgment entered in this matter interms (sic) of the award on 12th May, 2009 be enforced. 2. THAT the restriction and/or cautions placed on title, No. GESIMA SETTLEMENT/SCHEME/522 at entries No. 4,6 and 8 in the register be removed and entry No. 7 in the register be complied with. 3. THAT land parcel No. GESIMA SETTLEMENT/SCHEME/522 be subdivided into 3 equal portions in accordance to (sic) the decree herein and the portions be registered in the names of; 4. a) TERESA KERUBO ONGWAE b) MILKA MORAA ONGWAE and c) FRANCIS ONGWAE MANOTI (deceased) THAT the issue of the creation and/or opening of a parallel register resulting to other subdivisions infavour (sic) of the interested parties be heard in court on merit.” BOSIRE GICHANA & CO. ADVOCATES FOR THE 1ST AND 2ND DEFENDANTS/APPLICANTS ANG’ASA & CO. ADVOCATES FOR THE 3RD DEFENDANT/RESPONDENT. 7. On 5th September 2022, a consent dated 5th September 2022, also written on the letterhead of Bosire Gichana & Co. Advocates, was filed in the Subordinate Court. Its terms were as follows: We refer to the Notice of Motion dated 22nd July, 2022 which afiects the Applicants and 1st Respondent and we shall be grateful if you kindly record the following Consent Order: “By consent let: (a) The Land Registrar and County Surveyor - Nyamira County do visit land parcel No. GESIMA SETTLEMENT SCHEME/522 to ascertain and fix its boundary on the ground thereafter subdivide it unto 3 equal portions as per the consent order of 6th July, 2021. Most obliged. BOSIRE GICHANA & CO. ADVOCATES FOR THE APPLICANTS M. K. ANGASA & CO. ADVOCATES FOR THE 1ST RESPONDENT. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2028/eng@2026-04-15 3

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8. Subsequently, the Second, Fifth and Ninth Respondents herein filed Notice of Motion dated 28th September 2022, seeking the following orders: 1. THAT the application be marked urgent and service thereof be dispensed with in first instance. 2. THAT the honorable court be pleased to order stay of execution of the ruling of tribunal adopted by this courton (sic) the 12th day of May 2009 vide a decree issued on the 19th day of June 2009 and all its consequential orders pending hearing and determination of this application inter parties. 3. THAT the honorable court be pleased to order stay of execution of the ruling of tribunal adopted by this courton (sic) 12th day May 2009 vide the decree of the court issued on the 19th day of June 2009 and all its consequential orders pending hearing and determination of this application. 4. THAT the honorable court be pleased to set aside the adopted consent dated 5/09/2022 and filed in court on the same date and all consequential orders arising therefrom. 5. THAT the honorable court be pleased to set aside all orders and proceedings related to LR NO. GESIMA SETTLEMENT SCHEME/522 and all its resultant sub divisions. 6. THAT the honorable court be pleased to order reinstatement of all subdivisions arising out of LR NO. GESIMA SETTLEMENT SCHEME/522 in the land register. 7. THAT the honorable court be pleased to issue any other order it deems fit and just. 8. THAT the cost of this application be provided. 9. The Subordinate Court (W.K. Chepseba, Chief Magistrate) heard and determined the application through a ruling delivered on 25th July 2023. The application was allowed in terms of prayers 3, 4 and 5 thereof. 10. Dissatisfied with the outcome, the Appellants obtained leave to file an appeal out of time on 31st October 2023 in Nyamira ELCLMisc No. E003 of 2023. They thereafter filed this appeal on 15th November 2023, through Memorandum of Appeal dated 10th November 2023. The following are the grounds of appeal as listed on the face of the Memorandum of Appeal: 1. The Learned Magistrate erred in law and misdirected himself fundamentally in making a decision in excess of his jurisdiction. 2. The Learned Magistrate erred in law and misapprehended the legal principles of setting aside a consent order. 3. The Learned Magistrate erred in law and misdirected himself fundamentally in setting aside the decisions of a Court of equal competent jurisdiction relating to the same subject matter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2028/eng@2026-04-15 4

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4. The Learned Magistrate erred in making a decision in furtherance of perpetuating illegal acts committed by the Respondents and the department of Lands Nyamira County. 5. The Learned Magistrate erred in law and misdirected himself fundamentally in making a decision resulting in creating double registration on the same parcel of land. 6. The learned magistrate erred in law and in fact and misdirected himself fundamentally in NOT holding that all titles purportedly arising and/or resultant from land parcel No. GESIMA SETTLEMENT SCHEME/522 were illegal, null and void. 7. The learned magistrate erred in law and in fact in NOT holding that the titles acquired by the Respondents were untenable having been acquired unprocedurally and unlawfully. 8. The Learned Magistrate’s decision is plainly wrong in all the circumstances of the case. 9. The Learned Magistrate’s decision was made against the material facts placed before the court. 11. Based on those grounds, the Appellants prayed that the order of the Subordinate Court be set aside and that this Court makes any other or further orders as may be just and expedient in the circumstances. They also sought an order that costs of this appeal and of the proceedings before the Subordinate Court be borne jointly and severally by the Second to Twelfth Respondents. 12. The appeal was canvassed through written submissions. The Appellants filed submissions dated 29th August 2024 and supplementary submissions dated 14th October 2024. 13. The Appellants submitted that the Subordinate Court was functus oficio and ought not therefore to have entertained the application dated 28th September 2022. Relying on the case of Owners of the Motor Vessel Lillian S. v Caltex (Kenya) Ltd [1989] eKLR, they submitted that the Subordinate Court lacked jurisdiction and should have downed its tools. 14. They further contended that through Grounds of Opposition dated 18th October 2022 and Replying Afidavit sworn on 22nd November 2022, they raised the issue of the Subordinate Court being functus oficio and that the issues raised in the application had been canvassed in another application dated 4th June 2010 which raised the issue of whether title number Gesima Settlement Scheme/522 was part of the proceedings before the tribunal. 15. The Appellants further submitted that on 10th August 2021 the parties voluntarily entered into a consent to have the tribunal’s award adopted as an order of the Court and that there was consequently no capacity to challenge what had been agreed on. They relied on the cases of Brooke Bond Liebig Ltd v Mallya (1975) EA 266 and Hirani v Kassam (1952) 19 EACA 131 and contended that since the parties to the consent had disputed neither the contents nor validity of the consent, the application for its setting aside did not meet the threshold. 16. The Appellants also submitted that the Second to Twelfth Respondents had no direct interest on the register for parcel number Gesima Settlement Scheme/522 since they were merely Interested Parties brought into the proceedings by the Appellants on the basis that they were beneficiaries of resultant parcels arising from parcel number Gesima Settlement Scheme/522. That an “Interested Party” means https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2028/eng@2026-04-15 5

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a person that has an identifiable stake, legal interest or duty in the proceedings but is not a party to the proceedings or may not be directly involved in the litigation. That the impugned decision was in favour of the Second Respondent who had no interest whatsoever on parcel number Gesima Settlement Scheme/522. 17. Regarding prayer number 5 of the application pursuant to which setting aside of all orders and proceedings relating to parcel number Gesima Settlement Scheme/522 and all its resultant subdivisions was granted, the Appellants submitted that the several orders on record which were given by various Magistrates were so given on merit and in view of the respective circumstances. That some of the orders were final in nature and that the Learned Magistrate acted in excess of jurisdiction by interfering with decisions of other Magistrates. 18. The Appellants further submitted that their application dated 10th May 2013 is still pending hearing and determination and that the said application was brought under Section 34 of the Civil Procedure Act and was treated as a suit. That the consent was between the main parties to the initial suit and concerned the question of satisfaction and discharge of the decree, an issue which did not strictly afiect the Interested Parties. The Appellants therefore urged the Court to allow the appeal with costs to them. 19. The Second to Ninth, Eleventh and Twelfth Respondents filed submissions dated 1st July 2024. They submitted that the Appellants lodged the tribunal case against their husbandFrancis Ongwae Manoti and in respect of only one parcel of land being Gesima Settlement Scheme/271. That at the time of filing the tribunal case, the Appellants were aware that Francis Ongwae Manoti who was the sole registered proprietor of Gesima Settlement Scheme/522 had sold portions of the said parcel to the Respondents herein as is evidenced by the Respondents’ sale agreements dating back to the year 2005. That despite knowing so, the Appellants opted neither to include Gesima Settlement Scheme/522 nor join the Respondents in the tribunal proceedings. 20. They further submitted that after the tribunal’s award was adopted pursuant to Section 7 of the Land Disputes Tribunals Act (repealed), the Appellants made an ex-parte application and obtained orders for inclusion of Gesima Settlement Scheme/522 without the knowledge of the Respondents herein who were clearly interested in the said parcel. That by then, the tribunal was functus oficio since it had already made its decision and that Gesima Settlement Scheme/522 could not be included at the execution stage. Thus, the proceedings mounted by the Appellants afiecting Gesima Settlement Scheme/522 after the adoption of the award were irregular, null and void. 21. The Second to Ninth, Eleventh and Twelfth Respondents also submitted that pursuant to Section 7 of the Land Disputes Tribunals Act (repealed), the Subordinate Court was mandatorily required to enter judgment in accordance with the decision of the tribunal and its role in execution of the tribunal's decision was limited to merely adopting the decision without substantially changing or varying it. They added that the executing court had no jurisdiction to include Gesima Settlement Scheme/522 at the execution stage. They relied on the cases of Chrispus Mbichi Gakui v Karanja Wainaina [2006] eKLR, Mutemi Mwasya v Mutua Kasuva Machakos HC Civil Appeal No. 140 of 2001, Thomas Musyoka Muanga v Mutunga Muanga & another [2021] eKLR, and Florence Nyaboke Machani v Mogere Amosi Ombui & 2 others Civil Appeal 184 of 2011 [2014] eKLR in support of those submissions. 22. Additionally, they cited Lord Denning’s exposition of “void” in Macfoy vs United Africa Co Ltd (1961) 3 AlI ER 1169 and contended that the order including the parcel number Gesima Settlement Scheme/522 at the execution stage was a nullity which needed no court order to set it aside hence the learned Magistrate cannot be faulted. That having corrected a nullity, the order appealed against was proper and will not cause any judicial absurdity. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2028/eng@2026-04-15 6

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23. They further submitted that they purchased their properties from a registered proprietor in good faith, obtained titles, and had no knowledge of any fraud. That, consequently, they were innocent purchaser for value and that their titles were protected in law. They concluded by submitting that this appeal lacks merit and urged the Court to dismiss it with costs. 24. The First and Tenth Respondents did not file any submissions. 25. This is a first appeal. A first appeal is essentially a retrial. In other words, and in the context of this appeal, this Court is rehearing Notice of Motion dated 28th September 2022, but within the circumscribed rules of an appeal. This Court therefore has a duty to re-evaluate the application and all the material that was before the Subordinate Court and draw its own independent conclusions. 26. The principles applicable while considering a first appeal were stated in Selle v Associated Motor Boat Co. & others [1968] E.A. 123 as follows: An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefiy put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed sholan (1955), 22 E.A.C.A. 270). 27. I have carefully considered the Memorandum of Appeal, the submissions and the entire record. The issues that arise for determination are whether the Subordinate Court had jurisdiction and whether the reliefs sought in the application ought to have issued. 28. The question of jurisdiction is one that pervades all judicial proceedings. As has often been restated by the Courts, jurisdiction is the entry point in any matter that a Court is called upon to determine. It is the very life and soul of any proceedings without which the proceedings come to a certain end. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR. 29. Proceedings filed or conducted without jurisdiction are dead on arrival and cannot be remedied. See Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR. Given the cardinal role of jurisdiction, every Court must decide, from the very onset, whether it has jurisdiction to hear and determine a particular matter. That duty remains whether the parties maintain silence on the issue or even if they chant in unison that the Court has jurisdiction. 30. The holding of the Court of Appeal in National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR) succinctly drives the point home thus: Jurisdiction, a mantra in adjudication connotes the authority or power of a court to determine a dispute submitted to it by contending parties in any proceeding. A Court of law is invested with jurisdiction to hear a matter when: (a) it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; (b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and, (c) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. The three ingredients must co-exist https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2028/eng@2026-04-15 7

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in order to infuse jurisdiction in a Court. Where a Court is drained of the jurisdiction to entertain a matter, the proceedings fiowing from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity. 31. As I noted in the opening paragraph of this judgment, proceedings in Kisii CM Misc Application No. 32 of 2009 were commenced by the Chairman of the defunct Borabu Land Disputes Tribunal when he filed Notice of Motion dated 2nd April 2009, seeking adoption of the said tribunal’s award dated 10th February 2009 which was handed down in Borabu Land Disputes Tribunal Case No. 3 of 2008. He did so pursuant to Section 7 of the Land Disputes Tribunals Act (repealed) which provided as follows: (1) The chairman of the Tribunal shall cause the decision of the Tribunal to be filed in the magistrate’s court together with any depositions or documents which have been taken or proved before the Tribunal. (2) The court shall enter judgement in accordance with the decision of the Tribunal and upon judgement being entered a decree shall issue and shall be enforceable in the manner provided for under the Civil Procedure Act. 32. It is not in dispute that the tribunal’s award was adopted on 12th May 2009, and a decree issued by the Subordinate Court. The mandate of the Subordinate Court under Section 7 of the Land Disputes Tribunals Act (repealed) has been discussed in many cases. 33. In Mathenge v Gatua & another [2024] KECA 341 (KLR), the Court of Appeal held: It follows therefore that Section 7 is phrased in mandatory terms and it is our considered view that once the magistrates’ court receives the documents referred to, there is no discretion as to whether or not to enter judgment per the tribunal’s award. 34. In Florence Nyaboke Machani v Mogere Amosi Ombui & 2 Others [2014] eKLR, the Court of Appeal upheld the holding of the High Court to the efiect that once the award of the tribunal was adopted as a judgment of Magistrate’s Court, it ceased to exist on its own and could only be varied, vacated, set aside or reviewed in appropriate proceedings. The Court of Appeal further quoted, with approval, the holding of the High Court that the Magistrate’s Court had no jurisdiction under the Land Disputes Tribunals Act (repealed) to review, vary, rescind, vacate and or set aside an award once filed since its role was merely to adopt the award as a judgment and thereafter issue a decree. 35. Thus, the Appellants’ contention that the Subordinate Court was functus oficio is correct but must be seen in the proper perspective. The Subordinate Court became functus oficio on 12th May 2009, upon adoption of the award and the subsequent proceedings, including those that are the subject of this appeal, only compounded the problem. 36. As is manifest from the record, the tribunal’s award concerned only one parcel of land: Gesima Settlement Scheme/271. That much is clear from the decree of the Subordinate Court. 37. The record shows that after adopting of the tribunal’s award, the Subordinate Court made other orders which changed the scope and character of both the award of the tribunal and the proceedings before it. On 16th May 2013, the Subordinate Court allowed an application by Milka Moraa Ongwae who is the Second Appellant herein to join the Ninth, Sixth, Eighth, Second, Tenth, Fifth, Twelfth and Third Respondents herein as well as one Robert Mokaya Mamboleo as Interested Parties. The said persons were not parties in Borabu Land Disputes Tribunal Case No. 3 of 2008. In doing so, the Subordinate Court introduced parties who were never heard by the tribunal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2028/eng@2026-04-15 8

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38. On 6th July 2021, the Subordinate Court adopted a consent dated 29th June 2021, which ordered removal of restriction and/or cautions on Gesima Settlement/Scheme/522 and further ordered subdivision of the parcel into 3 equal portions. The said parcel was not mentioned in the tribunal’s award whose enforcement was the Subordinate Court’s sole mandate. Introduction of Gesima Settlement/Scheme/522 post award and decree was manifestly done without jurisdiction. 39. Further steps in excess of the award and decree took place on 5th September 2022 when a consent dated 5th September 2022 was filed whose terms were inter alia that the Land Registrar and County Surveyor Nyamira County were to visit land parcel number Gesima Settlement/Scheme/522 to ascertain and fix its boundary on the ground thereafter subdivide it unto 3 equal portions as per the consent order of 6th July 2021. 40. A perusal of the record shows that the Appellants sought to justify the introduction of the Interested Parties and Gesima Settlement/Scheme/522 after the award and decree as having been done under Section 34 of the Civil Procedure Act. The said section provides as follows: (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. (2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary, order payment of any additional court fees. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the court. Explanation.—For the purposes of this section, a plaintifi whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the suit. [Emphasis added] 41. It will be noted that the provision extends only to questions arising between the parties to the suit in which the decree was passed and the proceedings are limited to those concerning execution, discharge or satisfaction of the decree. In the context of the matter before the Subordinate Court, “parties” means the Chairman of the defunct Borabu Land Disputes Tribunal, Teresa Kerubo Ongwae, Milka Moraa Ongwae and Francis Ongwae Manoti who were parties in Borabu Land Disputes Tribunal Case No. 3 of 2008 as of 10th February 2009 when the award was made. It does not include the Interested Parties who were introduced after adoption of the award. 42. Further, the “decree” referred to in the section means the decree given on 12th May 2009 following adoption of the award. There is no other decree in the matter. The decree neither addresses the Interested Parties nor Gesima Settlement/Scheme/522. 43. It must be remembered that the Land Disputes Tribunals Act (repealed) provided a comprehensive mechanism for resolving disputes under it. See Mathenge v Gatua & another (supra). There was no jurisdiction either under Section 34 of the Civil Procedure Act or other provision for the Subordinate Court to change the award. See Ex parte Masagu Ole Koitelel Naumo, R V Principal Magistrate Kajiado Law Courts & Another [2014] eKLR and R V Kajiado North District Ngong Land Disputes Tribunal & Another Ex parte Caroline Wambui Ngunjiri & 2 Others [2014] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2028/eng@2026-04-15 9

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44. The efiect of proceedings conducted without jurisdiction is that they are a nullity. Sufice it to repeat what Lord Denning stated in Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169: If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. 45. It follows therefore that all the proceedings conducted by the Subordinate Court after the adoption of the award and issuance of the decree are a nullity for having been conducted without jurisdiction. For the avoidance of doubt, the only mandate of the Subordinate Court that remains is enforcement of the decree given on 12th May 2009, as given, unless and until the award and decree are lawfully set aside. 46. I find no merit in this appeal, and I therefore dismiss it with costs to the Second to Ninth, Eleventh and Twelfth Respondents. I do not award costs to the rest of the Respondents since they did not file any submissions. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 15TH DAY OF APRIL 2026. D. O. OHUNGO JUDGE Delivered in the presence of: No appearance for the Appellants No appearance for the 1st Respondent Mr Nyambati for the 2nd to 9th and 12th Respondents No appearance for the 10th Respondent Court Assistant: B Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2028/eng@2026-04-15 10

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