Harrison Muraguri Ndonga Nephant v Harrison Kamore Kagutu [2016] KEELC 791 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELC CIVIL APPEAL NO. 29 OF 2014

(FormerlyNyeri HCCA No. 45 of 2014)

and

ELC CIVIL APPEAL NO. 130 OF 2014

(FormerlyNYERI HCCA NO. 89 OF 2011)

HARRISON MURAGURI NDONGA NEPHANT ………..APPELLANT

-VERSUS-

HARRISON KAMORE KAGUTU .………..................... RESPONDENT

JUDGMENT

Introduction

1. This appeal relates to an award of the Central Provincial  Land Disputes Appeals Committee (hereinafter referred to as “the Appeals Committee”) made on 6th July, 2011 in Land Dispute Claim No. Muranga 12 of 2005.

The award appealed from was in the following terms:-

“AWARD

The appellant should give the respondent his land of one acre as it was decided by the Murang’a Land   disputes Tribunal. He should take the matter to the  Land Board and process the activity as soon as   possible.

Right of appeal 60 days to the High Court.

Each party to meet its costs.”

2.      Aggrieved by the aforementioned award/decision of the Appeals Committee, the appellant (Harrison Muraguri Ndoga Nephat) brought the current appeal on the grounds that the members of the appeals Committee erred by upholding and confirming the award of the  Lower Tribunal (Murang’a Land Disputes Tribunal) in Murang’a Land Disputes Tribunal case No. 12 of 2005; that the Appeals Committee erred by failing to appreciate that neither them nor the District Tribunal had jurisdiction to arbitrate on registered land and that the Appeals  Committee erred by failing to appreciate that their jurisdiction is conferred and limited by Section 3(1)of the   Land Disputes Tribunal Act No. 18 of 1990.

3.      It appears that two files were opened concerning the same appeal; that is, Nyeri ELC Civil Appeal No. 29 of 2014 and   Nyeri ELC Civil Appeal No.130 of 2014.

4.      Directions were given on 30th September, 2015 that the two files would be heard and disposed off together.

5       The appeal was disposed of by way of written submissions.

Appellant’s submissions

6.  In the submissions filed on behalf of the Appellant, it is pointed out that the appellant and the respondent, who are brothers-in-law, had entered into an oral agreement for sale of one acre of land out of Loc/15/Kigongo/1426 (the suit property) at Kshs. 60,000/=. Explaining that the  respondent failed to meet his part of the bargain after paying Kshs. 15,000/= as part payment of the agreed  purchase price, the appellant explains that he was forced   to file a claim at the District Tribunal to force the respondent to vacate the land. That was so because the respondent who, pursuant to the agreement of sale was    in possession of the suit property, had refused to heed   his notice to vacate.

7. It is pointed out that the District Tribunal found in favour   of the respondent and ordered the respondent to remain in the 1 acre that was sold and subject of the agreement between them.

8.  Explaining that the dispute concerned sale of registered land which is not within the ambit of Section 3(1)of Land Disputes Tribunal Act, the appellant maintains that both the District Tribunal and the Appeals Committee did not have jurisdiction to adjudicate on matters touching on    sale of registered land.

9. Referring to Sections 159 of the Registered Land Act,  Cap 300 Laws of Kenya (now repealed); Section 3(3) of    the Law of Contract Act, Cap 23 Laws of Kenya and Section 6(2) of the Land Control Act, Cap 302 Laws of Kenya, the appellant argues that the agreement entered between the respondent and himself is bad in law.

10.    The following authorities are cited in support of the appellant’s case:-

Mungai Njoroge v. Githunguri Land Disputes Tribunal & Another  Nairobi H.C Misc. Application No.1 of 2007;

Jacob Gichuki Minjire vs. Agricultural Finance Corporation Nairobi Court of Appeal Civil Appeal No.61 of 1982;

Machakos District Co-operative Union Ltd v. Phillip Nzuki Kiilu Nairobi Court of Appeal Civil Appeal No.112 of 1997; and

Fred C. Fedha & Another v. Edwin E. Asava Majani Eldoret Court of Appeal Civil Appeal No.84 of 2004.

Respondent’s submissions

11.    On behalf of the respondent, it is submitted that the appeal offends the provisions of Section 8(9) of the Land Disputes Tribunal Act in that the certificate required to be obtained under that Section was not obtained.

12.    The appeal is also said to be incompetent on the ground that the lower court had already adopted the award of the District Tribunal by the time an appeal was preferred before the Appeals Committee. Pointing out that the order of the lower court adopting the award of the District  Tribunal was neither stayed nor appealed from, the respondent terms the current appeal a mere academic       exercise.

13.   With regard to the points of law alluded to in the appeal, the respondent has submitted that such issues ought to  have been addressed through judicial review proceedings.

14.    For the foregoing reasons, it is submitted that it would be a travesty of justice to grant the appellant the orders sought.

Analysis and determination

15.    In is not in dispute that the dispute which is the subject   matter of this appeal relates to enforcement of a sale  agreement touching on registered land. In the case of Mungai Njoroge v. Githunguri LDT & Others (supra), it  was stated:-

“… It is clear that proceedings before the Tribunal related to title to land and beneficial interest in land  since the 3rd respondent claimed to have been given the said land by her father before he died. This  dispute in my view does not fall within S. 3(1) of the  LDTA. Such a dispute should be tried by the High  Court or by the Resident Magistrate’s Court where      the lower court has jurisdiction in terms of S. 159 of the Registered Land Act.

In the case of Mbugua Thiga v. Teresia Wangechi Macharia C.A 460 the tribunal dealt with registered land and justice Aganyanya held that the Land Disputes Tribunal had no jurisdiction to entertain the said matter. I appreciate that this is a decision of persuasive value having been made by a judge of concurrent jurisdiction. In another case of Jotham Amunavi v R KSM CA 256/2002, the Court of Appeal    held that Land Dispute Tribunal had no jurisdiction to deal with proceedings relating to title to land or  beneficial interest in land. So that even if it was a    case of succession, the 3rd Respondent should have filed it in the High Court or a court which deals with succession matters.”

16.    In the case of Republic v. Chairman, Lurambi Land Dispute Tribunal & 2 others (2006) eKLR it was held:-

“The powers vested in the tribunal under section 3(1)of Act 18 of 1990 do not include power to determine issues of or affecting title to land. The tribunal clearly   acted beyond the purview of its jurisdiction and its  decision was clearly ultra vires its powers under section 3(1) of the Land Disputes Tribunal Act No.18 of 1990…”

17.    In the case of Mateo Githua Ngurukie vs. Hon.Attorney General and 5 Others; Nyeri High Court CivilSuit No. 206 of 1999 Ombayo J.,  stated:-

“Over and again the Court of Appeal and High Court have held that the Land Dispute Tribunal lacks  jurisdiction over registered land especially where the matter at hand touches on title of land. (See Wachira   wambugu Case (supra) and Julius Mburu Mbuthia case, supra). It follows therefore that the instant   issues are not Res judicata due to the fact that they were deliberated upon and determined by an  incompetent tribunal that lacked jurisdiction over thesame.

In the case of Vincent Kipsongok Rotich v. Orphah Jelangat Ngelechei (2014) eKLR supra, the learned judge Munyao J., declined to declare the suit therein  res judicata despite the existing decision/order that had been made by the LDT and adopted by the Hon.  Magistrates Court.”

18.    It is clear from the above cited cases, that both the District Tribunal and the Appeals Tribunal did not have  jurisdiction to hear and determine issues touching on title   to land. That being the case, their decision concerning   the title held by the appellant was a nullity. In this regard     see the case of Samuel Kamau Macharia & Another v.Kenya Commercial Bank & 2 others (2012) eKLR where it was stated:-

“…A Court’s jurisdiction flows from either the  Constitution or legislation or both. Thus, a Court of  law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to  itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first   and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to   entertain a matter before it, is not one of mere  procedural technicality; it goes to the very heart of  the matter, for without jurisdiction, the Court cannot  entertain any proceedings.”

19.    Having found the proceedings preferred at the defunct  Land Disputes Tribunal in respect of this matter to have been a nullity in law, I declare them as such and direct that the parties revert back to the status which obtained   before the impugned proceedings were taken.

20.    Being of the view that it’s the appellant who occasioned the current proceedings by commencing the dispute at  the District Tribunal, I condemn him to pay the costs of the appeal.

Dated, signed and delivered at Nyeri this 8th day of June, 2016.

L N  WAITHAKA

JUDGE.

In the presence of:

Mr. Muguku  for the appellant

N/A for the respondent

Court assistant - Lydia