[2014] KEHC 5614 (KLR)
The court held that the Land Disputes Tribunal and the Appeals Committee lacked jurisdiction to hear and determine disputes involving trust (including customary trust) and matters affecting title to land. The law does not distinguish between statutory and customary trust for purposes of jurisdiction, and both are...
Source-derived case information.
- Citation
- [2014] KEHC 5614 (KLR)
- Parties
- Appellant: Charles Kimotho Ngure; Respondent: Peter Ndungu Gachoka
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 95 of 2007
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Decisions of the Land Disputes Tribunal and the Provincial Land Disputes Appeals Committee set aside. Costs awarded to the appellant.
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Customary Trusts, First Registration of Land, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kimotho Ngure
Appellant
Peter Ndungu Gachoka
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Land Disputes Tribunal and the Appeals Committee had jurisdiction to determine disputes involving first registration of land.
- 2 Whether the Tribunal and Appeals Committee could entertain issues of trust, including customary trust, relating to land.
- 3 Whether the Tribunal and Appeals Committee had jurisdiction to make orders affecting title to land.
Ratio Decidendi
The court held that the Land Disputes Tribunal and the Appeals Committee lacked jurisdiction to hear and determine disputes involving trust (including customary trust) and matters affecting title to land. The law does not distinguish between statutory and customary trust for purposes of jurisdiction, and both are outside the scope of the Tribunal's powers. Any decision by these bodies purporting to interfere with title to land, such as ordering subdivision of a registered parcel, is ultra vires and void. Consequently, the decisions of both the Tribunal and the Appeals Committee were set aside, and the appeal was allowed with costs to the appellant.
Court Disposition
Appeal allowed. Decisions of the Land Disputes Tribunal and the Provincial Land Disputes Appeals Committee set aside. Costs awarded to the appellant.
Orders
- Judgment of the Provincial Land Disputes Appeals Committee made on 3rd March 2007 is set aside.
- Judgment of the Land Disputes Tribunal is set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL APPEAL NO. 95 OF 2007
CHARLES KIMOTHO NGURE..............................APPELLANT
VERSUS
PETER NDUNGU GACHOKA...........................RESPONDENT
JUDGMENT
PETER NDUNGU GACHOKA, the Respondent herein, filed a complaint before the Tetu Land Disputes Tribunal claiming to be entitled to a portion excised from L.R.no.Thegenge/Kihora/210, a parcel of land registered in the name of CHARLES KIMOTHO NGURE, the Appellant herein. The Land Disputes Tribunal heard the dispute and in the end the tribunal awarded the Respondent 1. 5 acres to be excised from L.R.no.Thegenge/Kihora/210. Being dissatisfied with the aforesaid decision, the Appellant preferred an appeal before the Provincial Land Disputes Appeals Committee. The appeals committee heard the appeal and had it dismissed thus affirming the decision of the Tetu Land Disputes Tribunal. In essence the Appellant and the Respondent were to each have 1. 5 acres of L.R.no.Thegenge/Kihora/210. Being further aggrieved, the appellant filed this appeal.
On appeal, the Appellant put forward the following grounds:
The learned members of the tribunal erred in law and in fact in dealing with a case involving a first registration which has not within the jurisdiction of the tribunal.
The learned members of the tribunal erred in law and in fact in entertaining issues of trust which the tribunal had no jurisdiction.
The learned members of the tribunal erred in law and in fact in not appreciating that the tribunal had no jurisdiction to hear or determine a suit of this nature.
When the appeal came up for hearing, learned counsels recorded a consent order to have the appeal determined by written submissions. I have considered the rival submissions. Though the appellant has listed three grounds, a critical look at those grounds will reveal that the gist of the appellant's appeal is the question of jurisdiction. The appellant argues that the Land Disputes Tribunal and the Appeals committee did not have jurisdiction to hear and determine a dispute based on trust. It is also argued that the two bodies did not have jurisdiction to determine a dispute over title to land. The respondent on the other hand argued that since the dispute related to a customary trust, then the Land Disputes Tribunal and the Appeals committee had jurisdiction to entertain and determine the same.
It is not in dispute that the Land Disputes Tribunal and the Appeals Committee heard and determined a dispute based on trust. The law does not distinguish between statutory trust and customary trust. The bottom line is that the claim is based on trust. Being of the above view, it is obvious that the Land Disputes Tribunal and the Appeals committee heard and determined a dispute they did not have jurisdiction. Whatever way one looked at the decision, at the end of the whole process, title L.R.no.Thegenge/Kihora/210 will have to be interfered with by sub-division. The Land Disputes Tribunal and the Appeals Committee had no power to make awards which has the effect of interfering with title to land.
In the end, I find the appeal to be meritorious. I allow the same as prayed. Consequently, Judgment of the Provincial Land Disputes Appeals committee made on 3rd March 2007 and that of the Land Disputes Tribunal are set aside. The appellant is awarded costs of the Appeal.
Dated, Signed and delivered in open court this 21st day of February, 2014.
….......................
J.K.SERGON
JUDGE
In the presence of:
Mr. Kiboi holding brief for Mr. Mwangi for Appellant
N/A for Mr. Karweru for Respondent with Notice