https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4536

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC APPEAL NO. E016 OF 2025** **MOSES LORDI LENCHASHO.............................................................................APPELLANT** **VERSUS** **LENTAGE OLE SENTILA.........................................................................1ST RESPONDENT** **KAPAI SENTILA........................................................................................2ND RESPONDENT** **SAMEL SENTILA.......................................................................................3RD RESPONDENT** **MELAN SENTILA......................................................................................4TH RESPONDENT** ***(Being an Appeal against the entire Judgment and/or consequent Orders of the Magistrate Court in Environment and Land Case Number 57 of 2019 at Kajiado, dated and delivered on 6th March 2025 by Hon. Kagoni. E.M (SPM)*** ### **JUDGMENT** #### **Introduction** 1. This is an appeal against the entire judgment and consequent orders of the Chief Magistrate's Court in Kajiado. The impugned judgment was delivered on 6th March 2025 by Hon. Kagoni E.M. in Kajiado Chief Magistrate's Court ELC Case No. 57 of 2019 at Kajiado. In the trial court, the Appellant herein, Moses Lordi Lenchasho, was the Plaintiff, while the Respondents were the Defendants. 2. The dispute before the trial court primarily revolved around the ownership, existence, and procedural acquisition of land parcels within the Lorngosua Group Ranch, specifically parcels identified as KAJIADO/LORNGUSA/532, KAJIADO/LORNGUSA/545, and KAJIADO/LORNGUSA/242. The Appellant initiated the suit by way of a plaint filed on 20th August 2019, to which the Respondents responded by filing a Defence and Counterclaim dated 20th January 2023. 3. The Plaintiff was seeking the following Orders:- a) A vacant possession of the suit properties. b) Order of permanent injunction restraining the Defendants and his agents from interfering with the said parcels of land i.e. KAJIADO/LORNGUSUA/532 c) Cost and interest of this suit. 1. The Defendants filed an Amended Joint Statement of Defense and Counter claim dated 20th January, 2023 seeking the following Orders:- a. That the Plaintiffs’ suit against Defendants be struck out and or dismissed with costs. b. A declaration that SENTELA OLE PARMITORO LENYAMALO (deceased) was the legal and or registered owner of all that land parcel Number KAJIADO/LORNGUSUA/545 measuring approximately 143.8 Ha. c. A Declaration do issue that certificate of title number KAJIADO/LORNGUSUA/532 was obtained fraudulently and illegally and the same be cancelled and or revoked. d. An order of permanent injunction do issue restraining the Plaintiff by himself, his servants, agents, employees and or whoever acting on his instruction from subdividing, alienating, taking possession, occupation, trespassing and or interfering and or in any way dealing with the Defendants Land Parcel Number KAJIADO/LORNGUSUA/545 measuring approximately 143.8 Ha. e. The District Land Registrar’s Report dated 2.04.2014 be adopted as an order of this Honourable Court. f. Restriction placed on the Land Parcel Number KAJIADO/LORNGUSUA/545 be lifted and or vacated. g. Cost of the suit to be borne by the Plaintiff. 1. In his impugned judgment, the Learned Magistrate arrived at the conclusion that parcel KAJIADO/LORNGUSA/532 did not exist. Consequently, the trial court impeached and cancelled the Appellant's title based on allegations of fraud and illegal acquisition. 2. Aggrieved and dissatisfied with the trial court's decision, the Appellant filed a Memorandum of Appeal dated 28th March 2025. The Appellant challenges the impugned judgment on the following grounds: 3. THAT the Learned Magistrate erred in law and in fact by rendering a judgment that was inconsistent with established legal principles and the facts on record, thereby occasioning a serious misinterpretation of the law and leading to a grave miscarriage of justice. 4. THAT the Learned Magistrate erred in law and in fact by disregarding material evidence presented by the Appellant, which included but was not limited to: I. The Letter dated 8th April 2014 from the District Land Surveyor; II. The computation sheets and survey maps concerning KAJIADO/LORNGUSA/532 III. The Letter dated 26th August 2021 from Lorngosua Group Ranch; IV. The certified Green Card for KAJIADO/LORNGUSA/532; V. The decrees dated 5th December 2011 and 17th March 2015 issued in Land Dispute Tribunal Case No. 89 of 2011. Consequently, the Learned Magistrate arrived at a manifestly erroneous decision contrary to the weight of the evidence. 5. THAT the Learned Magistrate erred in law by adjudicating over a matter in which he lacked the requisite pecuniary jurisdiction, contrary to Section 7 of the Magistrates' Courts Act, 2016, given that the valuation report sanctioned by the Respondents placed the value of the subject property at Kshs. 66,720,000/=. 6. THAT the Learned Magistrate erred in fact by misinterpreting and disregarding the Surveyor's Report dated 8th April 2014, which explicitly indicated that the RIM consisted of both KAJIADO/LORNGUSA/545 measuring 93.039 Ha and KAJIADO/LORNGUSA/532 measuring 46.804 Ha. 7. THAT the Learned Magistrate erred in law and in fact by holding, without any contrary evidence, that KAJIADO/LORNGUSA/532 did not exist, despite the report from the Kajiado District Surveyor dated 8th April 2014 confirming its existence. 8. THAT the Learned Magistrate erred in law and in fact by impeaching the Appellant's title on allegations of fraud in the absence of any evidentiary support from the Land Registrar and/or officials from Lorngosua Group Ranch, contrary to the provisions of Section 26(1) of the Land Registration Act, 2012. 9. THAT the Learned Magistrate misinterpreted the principles of burden of proof in allegations of fraud, contrary to Sections 107 and 109 of the Evidence Act (Cap 80 Laws of Kenya), by erroneously shifting the burden of proof onto the Appellant instead of requiring the Respondents, who alleged fraud, to discharge their burden. 10. THAT the Learned Magistrate erred in law and in fact by adjudicating matters not pleaded, and in particular, by impeaching the Appellant's title on the unpleaded basis that the Appellant ought to have demonstrated that KAJIADO/LORNGUSA/242 was cancelled and that KAJIADO/LORNGUSA/532 was a replacement, despite neither party having raised this as an issue in their pleadings. 11. THAT the Learned Magistrate erred in law and in fact by making an erroneous assumption that the Appellant's claim was premised on the cancellation of KAJIADO/LORNGUSA/242, thereby failing to appreciate that Lorngosua Group Ranch had the right to allocate more than one property to its members in accordance with its internal land allocation procedures. 12. THAT the Learned Magistrate erred in law by cancelling the Appellant's title without establishing any legal basis for illegal or unprocedural acquisition of land, as required under Sections 24, 25, and 26 of the Land Registration Act, 2012. 13. THAT the Learned Magistrate erred in law and in fact by relying on two contradictory reports concerning the acreage of KAJIADO/LORNGUSA/545, namely: I. The District Surveyor's Report dated 2nd April 2014, which recorded the acreage as 143.80 Ha; and II. The District Surveyor's Report dated 8th April 2014, which recorded the acreage as 93.039 Ha. The Learned Magistrate failed to resolve this material inconsistency, thereby arriving at an erroneous conclusion. 14. THAT the Learned Magistrate erred in law and in fact by failing to find the Respondent in contempt of the court orders issued on 20th August 2019 notwithstanding clear evidence of service. 15. THAT the Learned Magistrate erred in law, fact, and objectivity by selectively considering evidence favorable to the Respondents while failing to properly apply established legal principles on burden of proof, impeachment of titles on allegations of fraud, and procedural impropriety in title acquisition, resulting in a legally flawed and unjust decision. T 16. THAT in the foregoing, the entire Judgment and/ Orders of the Learned Magistrate made on 6th March, 2025 by Hon. Kagoni in ELC 57 OF 2019 Kajiado, between the parties herein, and the entire reasoning, was fatally flawed and/or erroneous. 17. Arising from the grounds above, the Appellant prays for the following orders: 18. THAT the Appeal herein be allowed. 19. THAT the Judgment, Orders and Decree issued on 6th March 2025 in Chief Magistrates' Environment and Land Court Case No. 57 of 2019, Kajiado be set aside in its entirety. 20. THAT the Judgment, Orders and Decree issued on 6th March 2025 in Chief Magistrate's Environment and Land Court Case No. 57 of 2019, Kajiado, be set aside and substituted with an order granting the Appellant the prayers as sought in the plaint filed on 20th August 2019, while dismissing the Respondent's Counterclaim dated 20th January 2023. 21. THAT the Respondents do bear the costs of the Appeal and proceedings in the Chief Magistrate's Environment and Land Court Case No. 57 of 2019, Kajiado. Any other relief that this Honourable Court may deem just and fit to grant. **Analysis of Submissions** 1. The appeal was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this judgement. ***Appellant's Submissions*** 1. The Appellant filed written submissions dated 14th April 2026, advancing several grounds to challenge the trial court’s judgment. 2. First, the Appellant contested the trial court's finding that parcel KAJIADO/LORNGUSUA/532 did not exist on the ground. They argued that this conclusion directly contradicted uncontroverted documentary evidence, including a Green Card showing registration to the Lorngosua Group Ranch in 2001, a County Surveyor's map and report of 8th April 2014 confirming the presence of both Parcel 532 and 545 on the Registry Index Map, the Group Ranch Area List, and the Title Deed itself. Furthermore, the Appellant asserted that the trial court improperly relied on an unpleaded issue; specifically, the Appellant's prior allocation of Plot No. 242, to justify the cancellation of the title for Plot 532. To anchor this argument, the Appellant relied on the case of ***Oyomo & 2 others v Okumu [2024] KEELC 641 (KLR)*** to emphasize the established legal principle that courts are strictly bound by the parties' pleadings and cannot base their decisions on matters that were never pleaded. This was supported by statutory reliance on Section 83 of the Evidence Act regarding the presumption of genuineness of official documents, and Section 26 of the Land Registration Act concerning the certificate of title as prima facie evidence of absolute ownership. 3. Secondly, the Appellant raised the doctrines of res judicata and issue estoppel. He submitted that a prior, final, and binding decree had already been issued by the Land Disputes Tribunal in Case No. 89 of 2011, which determined that both parcels existed as separate entities. The Appellant argued that the trial court was bound by these previous decrees and entirely lacked the jurisdiction to re-litigate the same issues de novo. To support this limitation on the court's jurisdiction to reopen settled matters, the Appellant relied on a consolidated line of authorities including ***Sally Jemeli Korir & Another v William Suter & 2 Others [2020] eKLR, Mathenge v Gatua & another [2024] KECA 341 (KLR), Catherine C Kittony v Jonathan Muindi Dome & 2 others [2019] eKLR, and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR.*** 4. Thirdly, the Appellant argued that the trial court unlawfully shifted the burden of proof regarding the allegations of fraud. Instead of requiring the Respondents to affirmatively prove their claims of fraud, the court erroneously placed the burden on the Appellant to prove the absence of fraud. The Appellant pointed out that the Respondents failed to adduce direct evidence from the Land Registry or Group Ranch officials to substantiate their claims. To reinforce the statutory rules on the burden of proof under Sections 107, 108, and 109 of the Evidence Act, the Appellant relied on ***M'Ithaara & another v Magambo & another [2025] KECA 404 (KLR) and Ardhi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR***. Additionally, the Appellant explicitly distinguished the trial court's reliance on the precedent of ***Munyu Maina V. Hiram Gathiha Maina [2013] eKLR****,* arguing that the rationale in *Munyu Maina* is only applicable in scenarios where the entire root of a title is challenged, not in instances where mere unproven allegations of fraud are made. 5. Fourthly, addressing the cancellation of the title itself, the Appellant maintained that the trial court failed to satisfy the strict statutory prerequisites outlined in Sections 24, 25, and 26 of the Land Registration Act, which protect registered proprietors from challenges except on proven grounds of fraud or misrepresentation. The Appellant relied on ***Gitau v Munyaka & 2 others [2025] KEELC 4755 (KLR)*** to demonstrate the high threshold and strict legal prerequisites required to successfully defeat an otherwise absolute and indefeasible title. 6. Finally, the Appellant challenged the pecuniary jurisdiction of the trial court. He highlighted that the Senior Principal Magistrate presided over a dispute where the subject property's value was valued at Kshs. 66,720,000, far exceeding the court's maximum statutory limit of Kshs. 20,000,000 under the Magistrates' Courts Act. To underline the nature of a jurisdictional deficit, the Appellant relied heavily on the foundational cases of ***Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited [1989] KLR 1*** *and* ***Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others [2014] eKLR*** to assert the principle that jurisdiction is absolute, and a court lacking it must immediately down its tools. ***Respondents' Submissions*** 1. The Respondents filed written submissions dated 28th May 2026, urging the court to dismiss the appeal and uphold the trial court's judgment in its entirety. The Respondents began by referring to the duty of the first appellate court, noting that its primary role is to comprehensively re-evaluate and re-assess the entire body of evidence presented at trial. To remind the court of its mandate to draw its own independent conclusions based on the trial record, the Respondents relied on ***Abok James Odera T/A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR*** *and* ***Kenya Ports Authority v Kusthon (Kenya) Limited (2009) 2EA 212***. 2. At the core of their case, the Respondents submitted that the Appellant's acquisition of Parcel No. 532 was inherently fraudulent and corrupt. They alleged that the Appellant deliberately concealed his prior allocation of Plot No. 242 by the Lorngusua Group Ranch in 2001 and failed to provide any documentary evidence showing that Plot 242 was ever legally cancelled or swapped for Plot 532. Furthermore, they argued that Plot 532 was unlawfully excised from their late father's property (Plot 545) four years after his death, acting in direct contravention of a 2011 Land Disputes Tribunal order that expressly restrained the issuance of a title deed. To legally anchor this challenge to the Appellant's title, the Respondents relied upon a robust line of authorities including ***Munyu Maina v Hiram Gathiha Maina [2013] eKLR****,* ***Wachira v Kariuki & 3 others [2026] KEELC 1421 (KLR)****,* ***Kassim Ahmed Omar & Another vs. Anwar Ahmed Abed & Others (Malindi ELC No. 18 of 2015)****,* ***Dina Management vs. County Government of Mombasa [2023] KESC 30 (KLR)****,* ***Torino Enterprises vs. Attorney General [2023] KESC 79 [KLR]****, and* ***Hubert L. Martin & Others vs. Margret J. Kamar & Others [2016] eKLR****.* The Respondents relied on these cases collectively to establish the legal principle that whenever the very root of a title is challenged, it is not legally sufficient for a proprietor to merely dangle the instrument of title; rather, the burden shifts to them to affirmatively prove the legality and regularity of the entire acquisition process. 3. Regarding the conflicting surveyor reports, the Respondents submitted that the trial court made a correct evaluation. They maintained that the initial report of 2nd April 2014, which found Plot 532 to be non-existent on the ground, was the accurate assessment, and that the subsequent report of 8th April 2014 was merely the result of an illegal, post-mortem amendment to the Registry Index Map. Following this, the Respondents argued that the Appellant's act of curving out Parcel 532 from the deceased's Parcel 545 constituted an act of unlawful intermeddling with an estate, relying on Section 45 of the Law of Succession Act. 4. The Respondents also addressed the Appellant's claims of contempt regarding interim orders issued on 20th August 2019. They argued that the Appellant failed to provide any evidence proving that the Respondents had proper notice or knowledge of these orders. To outline the strict evidentiary ingredients required to prove civil contempt, the Respondents relied upon **Getecha v Hydro Developers Limited [2025] KEELC 721 (KLR)**, which favorably quoted ***Cecil Miller v. Jackson Njeru & Another [2017] eKLR***. 5. Finally, in responding to the Appellant's ground on the trial court's pecuniary jurisdiction, the Respondents asserted that the Appellant had voluntarily invoked the court's jurisdiction and fully participated in the proceedings to their conclusion. To argue that a party cannot legally approbate and reprobate by submitting to a court's jurisdiction only to challenge it upon receiving an unfavorable outcome, the Respondents relied on the precedent set in***In re Estate of Fredrick Kibochi Thuo (Deceased) [2026] KEHC 2092 (KLR)****.* **Issues for Determination** 1. Having considered the rival submissions, the memorandum of appeal, and the duty of this Court as a first appellate court to re-evaluate the evidence, the numerous grounds of appeal can be condensed into four core issues for determination. 2. When a court is faced with threshold questions of jurisdiction, those must be resolved first before delving into the substantive merits of the dispute. Accordingly, the issues are framed as follows: 3. ***Whether the learned trial magistrate had the requisite pecuniary jurisdiction to hear and determine Kajiado CMELC No. 57 of 2019.*** 4. ***Whether the suit before the subordinate court was barred by the doctrine of res judicata by reason of the proceedings and decree arising from Kajiado Land Disputes Tribunal Case No. 89 of 2011.*** 5. ***Whether the Respondents proved the allegations of fraud, illegality and irregularity to warrant cancellation of the Appellant's title to Land Parcel No. KAJIADO/LORNGUSUA/532.*** 6. ***Whether the judgment and consequential orders of the trial court should be upheld, varied or set aside, and what orders should issue as to costs.*** **Analysis and Determination** 1. ***Whether the trial Magistrate possessed jurisdiction over value to determine Kajiado CM ELC No. 57 of 2019*** 2. Jurisdiction is the source from which every court derives authority to determine disputes presented before it. A court must satisfy itself that it possesses jurisdiction before considering any issue on the merits. Where jurisdiction is absent, every subsequent proceeding is rendered a nullity. 3. The Supreme Court in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR*** 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."*** 1. The principle was stated earlier in ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1****,* where Nyarangi JA held: ***"Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction."*** 1. The dispute before the subordinate court concerned ownership, cancellation of title and injunctive relief relating to land parcels within Lorngosua Group Ranch. The learned magistrate exercised jurisdiction as a designated Environment and Land Court under **Section 26 of the Environment and Land Court Act** and **Section 9(a) of the Magistrates' Courts Act**. 2. Section 9(a) of the Magistrates' Courts Act provides: ***"A magistrate's court shall—*** ***(a) in the exercise of the jurisdiction conferred upon it by section 26 of the Environment and Land Court Act (Cap. 12A), hear and determine claims relating to—*** ***(i) environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;*** ***(ii) compulsory acquisition of land;*** ***(iii) land administration and management;*** ***(iv) public, private and community land and contracts, choses in action or other instruments granting enforceable interests in land; and*** ***(v) environment and land generally."*** 1. That jurisdiction is expressly subject to the pecuniary limits established under Section 7 of the Act. 2. Section 7(1) provides: ***"A magistrate's court shall have and exercise jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—*** ***(a) twenty million shillings, where the court is presided over by a Chief Magistrate;*** ***(b) fifteen million shillings, where the court is presided over by a Senior Principal Magistrate;*** ***(c) ten million shillings, where the court is presided over by a Principal Magistrate..."*** 1. The impugned judgment was delivered by **Hon. Kagoni, Senior Principal Magistrate**. The applicable pecuniary limit was therefore **Kshs. 15,000,000**. 2. The record shows that the Respondents produced a valuation report assessing the suit property at **Kshs. 66,720,000**. Neither the authenticity of that report nor the valuation contained therein was challenged. The value disclosed exceeded the statutory jurisdiction of the trial court by more than four times. 3. Once evidence establishing the value of the subject matter was placed before the court, the learned magistrate was under a duty to satisfy himself that the court remained clothed with jurisdiction. Jurisdiction is not a procedural technicality capable of waiver. It is a statutory condition precedent to the exercise of judicial authority. 4. The Respondents contend that the Appellant is estopped from raising the issue because he instituted the proceedings and participated in the trial until judgment. 5. In **Owners of the Motor Vessel "Lillian S"**, the Court made it clear that jurisdiction cannot be conferred by the conduct of parties. 6. The Court of Appeal in ***Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 Others [2013] eKLR***stated: *"****So central and determinative is the issue of jurisdiction that it is at once fundamental and over-arching as far as any judicial proceedings are concerned. A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it."*** 1. Jurisdiction cannot be expanded through acquiescence or consent. 2. The Respondents further submitted that the Appellant cannot approbate and reprobate by invoking the jurisdiction of the subordinate court then challenging it on appeal. 3. That argument overlooks the settled principle that jurisdiction is conferred by statute and not by the conduct of litigants. A party cannot, through acquiescence, vest a court with jurisdiction withheld by Parliament. Where a court lacks jurisdiction, the resulting proceedings remain void notwithstanding the participation of the parties. 4. Having considered the entire record, this Court is satisfied that the valuation report formed part of the evidence before the subordinate court and disclosed that the subject matter was valued at **Kshs. 66,720,000**. That value exceeded the pecuniary jurisdiction of a Senior Principal Magistrate prescribed under Section 7 of the Magistrates' Courts Act. 5. The learned trial magistrate therefore lacked jurisdiction to hear and determine the dispute. In the absence of jurisdiction, the proceedings and the judgment delivered on 6th March 2025 cannot stand. 6. ***Whether the suit before the subordinate court was barred by the doctrine of res judicata by reason of the proceedings and decree arising from Kajiado Land Disputes Tribunal Case No. 89 of 2011.*** 7. The Appellant contends that the dispute presented before the subordinate court had already been conclusively determined in **Kajiado Land Disputes Tribunal Case No. 89 of 2011**, whose award was subsequently adopted as a judgment of the Magistrates' Court. According to the Appellant, the Tribunal determined the dispute relating to the existence and ownership of the parcels in question and directed the District Surveyor to ascertain the position of the parcels on the ground. The Appellant submits that the subsequent survey confirmed the existence of both Parcel No. KAJIADO/LORNGUSUA/532 and Parcel No. KAJIADO/LORNGUSUA/545, thereby settling the controversy. It is therefore argued that the Respondents were precluded from reopening the same issues before the trial court. 8. The Respondents maintain that the doctrine of res judicata is inapplicable because the dispute before the subordinate court concerned the legality of the Appellant's title, allegations of fraud, and the process through which Parcel No. KAJIADO/LORNGUSUA/532 was created and registered. They submit that these issues were neither determined nor capable of determination by the Land Disputes Tribunal. 9. The doctrine of res judicata is part of substantive rule of law intended to bring litigation to an end. It bars a court from entertaining a dispute that has already been finally determined by a court or tribunal of competent jurisdiction between the same parties or those claiming under them. 10. Section 7 of the Civil Procedure Act provides: ***"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."*** 1. The Supreme Court in ***Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR,*** stated that: ***"The doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation."*** 1. The Court of Appeal in ***Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR*** identified the elements of res judicata as follows: ***"(a) The suit or issue was directly and substantially in issue in the former suit. (b) That former suit was between the same parties or parties under whom they or any of them claim. (c) Those parties were litigating under the same title. (d) The issue was heard and finally determined in the former suit. (e) The court that formerly heard and determined the issue was competent to try the subsequent suit."*** 1. These elements must exist concurrently. 2. The record demonstrates that the proceedings before the Land Disputes Tribunal culminated in an award which was subsequently adopted as a judgment of the Magistrates' Court. The Tribunal directed that the District Surveyor visits the suit property to establish the correct position of the disputed parcels. Pursuant to that decree, survey reports dated **2nd April 2014** and **8th April 2014** were prepared, forming part of the evidence before the subordinate court. 3. The Appellant argues that the Tribunal proceedings conclusively established the existence of Parcel No. 532 and therefore foreclosed any subsequent litigation concerning that question. 4. The jurisdiction of Land Disputes Tribunals was prescribed under **Section 3(1) of the repealed Land Disputes Tribunals Act**, which provided: **"Subject to this Act, all cases of a civil nature involving a dispute as to—** **(a) the division of, or the determination of boundaries to land, including land held in common;** **(b) a claim to occupy or work land; or** **(c) trespass to land, shall be heard and determined by a Tribunal established under section 4."** The jurisdiction conferred by the statute did not extend to determining ownership of registered land, cancellation of title, rectification of the land register, or adjudicating allegations of fraud in the acquisition of title. 1. The Court of Appeal in ***Jotham Amunavi v The Chairman Sabatia Division Land Disputes Tribunal & Another [1988] eKLR*** held that: ***"The Tribunal (LDT) had no jurisdiction to determine issues of title to registered land."*** 1. Likewise, in ***Republic v Chairman, Land Disputes Tribunal Kirinyaga District & Another ex parte Kariuki [2005] eKLR***, the Court held that a Tribunal established under the Act had no mandate to cancel title or determine proprietary interests in registered land. 2. The pleadings before the subordinate court disclose that the Respondents' counterclaim sought, among other reliefs, a declaration that the deceased was the lawful proprietor of Parcel No. KAJIADO/LORNGUSUA/545, cancellation of the Appellant's title to Parcel No. KAJIADO/LORNGUSUA/532 on grounds of fraud and illegality, adoption of the Land Registrar's report, and injunctive relief restraining interference with Parcel No. 545. 3. These questions concern the legality of registration, validity of title, alleged fraud, and rectification of the register. They fall within the jurisdiction of the Environment and Land Court and courts exercising jurisdiction under the Environment and Land Court Act. They were not matters capable of determination by the Land Disputes Tribunal under Section 3(1) of the repealed Act. 4. The Court has also examined the decree arising from Tribunal Case No. 89 of 2011. Although the decree directed a survey to establish the position of the parcels on the ground, it did not determine whether the Appellant acquired Parcel No. 532 lawfully, whether the title was procured through fraud or illegality, or whether the register ought to be rectified. Those questions arose from the Respondents' counter claim filed in 2023 following registration of the title. 5. Accordingly, while the Tribunal proceedings and the resulting decree constitute relevant historical evidence explaining the genesis of the dispute, they do not satisfy the requirements of Section 7 of the Civil Procedure Act in relation to the issues raised in the counterclaim. 6. The Appellant further invokes the doctrine of issue estoppel. That doctrine precludes parties from reopening a specific issue that has been distinctly determined in earlier proceedings. 7. The survey exercise ordered by the Tribunal addressed the physical location and configuration of the disputed parcels. It did not conclusively determine the legality of the subsequent registration of Parcel No. KAJIADO/LORNGUSUA/532, the validity of the title issued to the Appellant, or whether fraud attended its creation. Those remained live issues capable of judicial determination. 8. This Court therefore finds that the suit before the subordinate court was **not barred by the doctrine of res judicata**. Although the Tribunal proceedings formed part of the factual background to the dispute, the issues raised in the Respondents' counter claim concerning fraud, legality of registration and cancellation of title were neither directly nor substantially in issue before the Tribunal, nor were they matters within the Tribunal's statutory jurisdiction. 9. For completeness, however, this finding does not alter this Court's conclusion under Issue (i) that the subordinate court lacked pecuniary jurisdiction to determine the suit. The finding on res judicata is therefore made in the alternative. ***iv. Whether the judgment and consequential orders of the trial court should be upheld, varied or set aside, and what orders should issue as to costs*** 1. This Court has re-evaluated the pleadings, the evidence on record, the judgment of the subordinate court, the memorandum of appeal, the written submissions and the applicable law, as is required of a first appellate court. 2. The first issue for determination concerned the jurisdiction of the subordinate court. This Court found that the suit property was valued at **Kshs. 66,720,000**, a value that exceeded the pecuniary jurisdiction of the Senior Principal Magistrate under Section 7 of the Magistrates' Courts Act. Jurisdiction is conferred by statute and cannot be enlarged by the conduct, acquiescence or consent of the parties. The learned trial magistrate therefore lacked jurisdiction to hear and determine Kajiado CM ELC No. 57 of 2019. 3. The consequence of that finding is that the proceedings conducted before the subordinate court and the judgment delivered on 6th March 2025 were undertaken without jurisdiction. In law, proceedings conducted without jurisdiction are void. 4. In ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1****,* the Court stated: ***"Jurisdiction is everything. Without it, a court has no power to make one more step."*** 1. The Supreme Court reaffirmed the same principle in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR***, where it held that a court may only exercise jurisdiction donated by the Constitution or statute. Having reached that conclusion, the appeal succeeds on the jurisdictional ground alone. For completeness, this Court nevertheless considered the remaining issues. It found that the suit was not barred by the doctrine of res judicata. 2. The remaining question concerns the appropriate relief. 3. The Court is also guided by Article 159(2)(d) of the Constitution, which requires courts to administer justice without undue regard to procedural technicalities, while bearing in mind that jurisdiction is not a procedural technicality but a substantive requirement that cannot be overlooked. Striking out proceedings conducted without jurisdiction preserves the rule of law while leaving the parties at liberty to ventilate their dispute before the proper forum. 4. With regard to costs, Section 27(1) of the Civil Procedure Act provides: ***"Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order."*** 1. The Appellant has succeeded in the appeal. There is no reason to depart from the general principle that costs follow the event. 2. Accordingly, this Court makes the following orders: 3. The appeal is hereby **allowed**. 4. It is hereby declared that the Senior Principal Magistrate sitting at Kajiado in **CM ELC No. 57 of 2019** lacked the pecuniary jurisdiction prescribed under Section 7 of the Magistrates' Courts Act to hear and determine the dispute. 5. The judgment, decree and all consequential orders delivered on **6th March 2025** in **Kajiado CM ELC No. 57 of 2019** are hereby **set aside in their entirety**. 6. **Kajiado CM ELC No. 57 of 2019** is hereby struck out for want of jurisdiction with no orders as to costs. 7. The parties shall be at liberty, if so advised, to institute appropriate proceedings before a court of competent jurisdiction. 8. The Appellant shall have the costs of this appeal. **It is so ordered.** **Dated, Signed and Delivered at Kajiado Virtually this 7th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Mutinda h/b for Ms. Githogori for the Appellant Mr. Nairi for the Respondents Court Assistant: Alex **M.D. MWANGI** **JUDGE**