[2004] KEHC 977 (KLR)
The court held that the Land Dispute Tribunal and the Provincial Appeal Committee acted in excess of their jurisdiction by ordering the sub-division of land registered under the Registered Land Act. The appellants, as sons of the respondent, have no legal right—whether under customary law, common law, or statute—to...
Source-derived case information.
- Citation
- [2004] KEHC 977 (KLR)
- Parties
- Appellant: Erastus J.M. Mwangi; Appellant: Stephen Kirathe; Respondent: Jacob Gakuru Stephano
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 268 of 1999
- Procedural Posture
- Civil Appeal / Further Judgment After Preliminary Judgment
- Outcome
- appeal dismissed
- Judges
- PJ Ransley
- Legal Topics
- Registered Land Act, Land Disputes Tribunal Jurisdiction, Succession Rights, Customary Law Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus J.M. Mwangi
Appellant
Stephen Kirathe
Appellant
Jacob Gakuru Stephano
Respondent
Procedural Posture
Civil Appeal / Further Judgment After Preliminary Judgment
Legal Issues
- 1 Whether the appellants have a legal right, under customary, common law, or statute, to claim part of their father's land during his lifetime.
- 2 Whether the Land Dispute Tribunal and Provincial Appeal Committee had jurisdiction to order sub-division of registered land under the Registered Land Act.
- 3 Whether the appeal to the Provincial Appeal Committee was out of time.
Ratio Decidendi
The court held that the Land Dispute Tribunal and the Provincial Appeal Committee acted in excess of their jurisdiction by ordering the sub-division of land registered under the Registered Land Act. The appellants, as sons of the respondent, have no legal right—whether under customary law, common law, or statute—to claim a share of their father's land during his lifetime. Any customary right, such as Kagonda ka Mai, can only be asserted in a Succession Cause after the death of the registered proprietor. The appeal was therefore dismissed as the orders sought were beyond the powers of the tribunals and the appellants had no enforceable right at law at this stage.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
H.CIVIL APPEAL NO.268 OF 1999
1 ERASTUS J.M. MWANGI
2. STEPHEN KIRATHE ……………………..……………………. PLAINTIFFS
VERSUS
JACOB GAKURU STEPHANO ………………….……………….DEFENDANT
FURTHER JUDGMENT
In my preliminary Judgment I ordered that a copy of the title deed be produced annexed to an affidavit sworn by the Respondent together with a certificate of confirmation of grant and an extract from the green card.
From the certificate of confirmation of Grant it appears that the Respondent was the beneficiary of the suit premises, the title to which is registered in his name. This is also confirmed by the entries on the green card although there is a caution registered by the first appellant claiming a beneficial interest in the suit premises.
The Appellants who are the sons of the Respondent are concerned that their father wishes to give the suit premises to his wives and that in particular he is being manipulated by his last remaining wife.
The Appellants complain that the Provincial Land Tribunal heard an appeal against the decision of the Maragua District Land Dispute Tribunal in case No. LDT 26 of 1998 Maragua, which was out of time.
I find it difficult to see why proceedings were brought before the District Land Dispute Tribunal ostensibly by the Respondent. There are no pleadings either in the original file or the Record of Appeal.
The Respondent in the Appeal states in the record that he had made the appeal because the Maragua Tribunal ordered him to give the land to his sons.
The Award at page 9 of the Land dispute Tribunal is not clear as to how the land is to be sub-divided. However what is clear is that the Tribunal was acting in excess of its jurisdiction in ordering the sub-division of a piece of land to which there is a title under the Registered Land Act. Their decision is therefore ultra virus their powers and therefore unlawful.
The point at issue in this matter is the question as to whether or not the Appellants have any right in law, whether customary common law or statutory to claim part of their father’s land in his lifetime.
The Appellants rely on the Kikuyu custom called Kagonda ka Mai.
This is the right in a beneficiary. However this right can only be asserted in a Succession Cause. If the Appellants consider they have a right to land devolved through their grandmother they should make an application in a Succession Cause.
I see no evidence that the Appeal to the Provincial Appeal committee was out of time.
However this is academic as the orders it made are beyond its jurisdiction even by consent. In the result I dismiss this appeal. As the Appellant is in person and the Respondent their father I make no order as to costs.
Dated and delivered at Nairobi this 17th day of February 2004
P.J. RANSLEY
JUDGE