https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3069

Nyaga & another v Wanjohi & another (Environment and Land Appeal E042 of 2025) [2026] KEELC 3069 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELC 3069 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Appeal E042 of 2025 EC Cherono, J May 21, 2026 Between Iburahim Mugwimi Nyaga 1st Appellant Mary Wanja Ndwiga 2nd Appellant and Margaret Wanjiru Wanjohi 1st Respondent Stephen Njau Wanjohi 2nd Respondent (Being an appeal from the Judgment of the Chief Magistrate Hon. Francis Kyambia delivered on 20th May 2025 in Embu CM-ELC No. 80 of 2013) Judgment Introduction 1.This is an appeal against the judgment of the Chief Magistrate's Court (Hon. Francis Kyambia) delivered on 20th May 2025 in Embu CM-ELC No. 80 of 2013. The learned trial Magistrate dismissed the Appellants' suit and allowed the Respondents' counterclaim, thereby declaring the 1st Respondent the lawful proprietor of land parcel No. Gaturi/Weru/1034 measuring approximately 13 acres, and issuing a permanent injunction against the Appellants. 2.The Appellants are dissatisfied and have preferred this appeal on nine (9) grounds which, when distilled, raise the following core issues for this Court's determination:i.Whether the Land Disputes Tribunal and its Provincial Appeals Committee had jurisdiction to determine ownership of land and to cancel or restore land titles;ii.Whether the learned trial Magistrate erred by in effect setting aside the decree of a co-equal court issued in Embu SPMCC No. 31 of 1996;iii.Whether the trial court properly applied the findings of the High Court in Succession Cause No. 362 of 2010 and ELC Appeal No. 8 of 2014;iv.Whether the Respondents' counterclaim was time-barred; andv.Whether the judgment was against the weight of evidence. 3.The dispute concerns land parcel No. Gaturi/Weru/705 originally registered in the name of the late Nyaga Muchiri (father of the Appellants). The Respondents' case is that in 1975 Nyaga Muchiri sold 13 acres out of the said parcel to Hezekiah Wanjohi (father of the 2nd Respondent and late husband of the 1st Respondent), with the transaction being approved by the Land Control Board vide consent dated 6th June 1975. Upon subdivision, land parcel No. Gaturi/Weru/1034 (13 acres) was created in favour of Hezekiah Wanjohi, while parcel No. Gaturi/Weru/1035 (2 acres) was retained by/given to Nyaga Muchiri. 4.The Appellants dispute the sale and contend that land parcels Nos. Gaturi/Weru/1034 and 1035 were unlawfully created. Their predecessor, Nyaga Muchiri, filed proceedings that culminated in a decree by the Senior Principal Magistrate's Court at Embu on 13th April 2000 in SPMCC No. 31 of 1996, which ordered the cancellation of the registration of parcels Gaturi/Weru/1034 and 1035 and restoration of the land to the original parcel Gaturi/Weru/705, with a direction that 3 acres be transferred to the Defendants therein. The Embu District Land Registrar, by a letter dated 23rd November 2012, confirmed cancellation of parcel No. Gaturi/Weru/1034. 5.On their part, the Respondents appealed against the Land Disputes Tribunal award to the Eastern Provincial Appeals Committee, which on 19th July 2011 (or 2012, as the record discloses) purported to allow the appeal and direct registration of land parcel No. Gaturi/Weru/1034 in the name of the 1st Respondent. Meanwhile, the 1st Respondent also obtained a grant in High Court Succession Cause No. 362 of 2010 in which parcel Gaturi/Weru/1034 was included as estate property. That grant was subsequently challenged and revoked by the High Court. Analysis And Determination 6.The first and most fundamental issue is the jurisdiction of the Land Disputes Tribunal (and its appellate structure) over the matters it purported to determine. 7.Section 3(1) of the repealed Land Disputes Tribunals Act (Cap. 303B) confined the Tribunal's jurisdiction to disputes relating to: (a) the division of, or the determination of boundaries of land; (b) a claim to occupy or to work on land; and (c) trespass to land. It is well-settled that the Tribunal had no jurisdiction to determine ownership of land, cancel title deeds, or order subdivision of registered land. This Court is guided by the decision of the Court of Appeal in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited [1989] KLR 1, where it was held that jurisdiction is everything, and without it a court or tribunal has no power to make one more step. 8.In Republic v Embu District Land Disputes Tribunal & 2 Others Ex parte Gatumo Kaboreria & Another [2015] KEHC 5854 (KLR), the High Court held that the Land Disputes Tribunal exceeded its jurisdiction when it purported to deal with questions of title to registered land. Similarly, in Hezekiah Kungu v Ernest Kamau Kinuthia [2002] eKLR, the court confirmed that the Tribunal's mandate did not extend to ownership disputes concerning registered land. 9.Applying these authorities, the Land Disputes Tribunal proceedings that resulted in the award subsequently adopted as a decree of the Magistrates' Court in SPMCC No. 31 of 1996 — to the extent that they purported to cancel the registration of parcels Gaturi/Weru/1034 and Gaturi/Weru/1035 — were ultra vires and of no legal effect. As Lord Denning MR stated in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC): '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.' 10.However, this Court notes a critical constitutional and legal distinction: the decree issued by the Senior Principal Magistrate's Court on 13th April 2000 was not merely an adoption of a Tribunal award. Once the Magistrate's Court exercises its own judicial discretion and enters a decree on the basis of proceedings before it — even where those proceedings originate from a Tribunal — the resulting decree is a judgment of the court and carries the full force of a court order. The appropriate remedy against such a decree is an appeal to a superior court or an application to set it aside within the same court, not a collateral attack in separate proceedings. 11.This Court finds that the learned trial Magistrate erred in treating the decree in SPMCC No. 31 of 1996 as a nullity on the basis that the underlying Tribunal proceedings were without jurisdiction. The proper characterization is that the decree of 13th April 2000 remained a valid and subsisting court order, binding upon the parties, until set aside by a court of competent jurisdiction. No evidence was placed before this Court that the decree was ever appealed against or set aside. 12.Ground 3 of the appeal is well taken. A Magistrates' Court has no power to sit in appeal over, or to declare null and void, the judgment or decree of another Magistrates' Court of co-equal jurisdiction. To permit otherwise would create chaos and uncertainty in the legal system. The doctrine of judicial comity demands that decisions of courts of coordinate jurisdiction be respected and treated as binding unless set aside by a superior court. 13.In the circumstances of this case, the learned trial Magistrate in CM-ELC No. 80 of 2013 effectively purported to nullify the operative decree issued on 13th April 2000 in SPMCC No. 31 of 1996, which cancelled parcels Gaturi/Weru/1034 and 1035. This he could not lawfully do. The principle was aptly stated by the High Court of Uganda in Odaga v Wavah Holdings Ltd [1992] HCB 14, where it was held that one court of concurrent jurisdiction cannot override or nullify the decision of another. The same principle has been upheld in Kenyan jurisprudence: see Kenya Revenue Authority v Darasa Investments Ltd [2018] eKLR, where the Court of Appeal cautioned against collateral challenges to subsisting court orders. 14.The Respondents rely heavily on the decision of the Eastern Provincial Land Disputes Appeals Committee of 19th July 2011/2012 as vindicating the 1st Respondent's title to parcel Gaturi/Weru/1034. This argument faces insuperable difficulties. 15.First, the Environment and Land Court Act No. 19 of 2011 came into force on 30th August 2011, thereby repealing the Land Disputes Tribunals Act. By the time the Provincial Appeals Committee purported to render its decision on 19th July 2012, the Act under which it was established had been repealed. The Committee was therefore functus officio and had no legal basis to exercise jurisdiction. Any decision made after the repeal of its enabling statute is a nullity: see Commissioner of Lands v Hotels & Apartments Ltd [1997] eKLR. 16.Second, and in any event, the Appeals Committee's decision cannot override a decree of a competent court. The Committee was an administrative/quasi-judicial body and could not sit in review of a Magistrate's Court decree. 17.Third, the Appellants correctly point out that the party in whose favour the appeal was allegedly filed (Hezekiah Wanjohi) had died before the appeal was heard and determined, and no substitution was effected. An appeal prosecuted without substitution of a deceased party is a nullity: see Stephen Murigi Kimani v Jane Wangui Kimani [2019] eKLR. 18.Fourth, and critically, the Provincial Appeals Committee's decision was never entered as a judgment of any court. A quasi-judicial determination that is never reduced to a court judgment cannot be enforced as one. This Court agrees with the Appellants on this ground. 19.The High Court's findings in these proceedings are instructive. In the Succession Cause, the court — on an application for revocation of the grant — found that land parcel No. Gaturi/Weru/1034 had been cancelled and restored to the original parcel Gaturi/Weru/705 as per the decree of the Magistrates' Court, and therefore could not form part of the estate of Hezekiah Wanjohi. The grant was accordingly revoked insofar as it pertained to parcel Gaturi/Weru/1034. 20.In ELC Appeal No. 8 of 2014, Hon. Justice Muchemi similarly ruled that land parcel Gaturi/Weru/1034 did not form part of the estate, consistent with the position that it had been cancelled. 21.The learned trial Magistrate, in allowing the counterclaim and declaring the 1st Respondent the lawful proprietor of Gaturi/Weru/1034, effectively contradicted and overturned these High Court findings. This a Magistrates' Court has no jurisdiction to do. The doctrine of judicial hierarchy and the principle of stare decisis require that a subordinate court follow and apply decisions of the High Court, not depart from them: see Article 163(7) of the Constitution of Kenya, 2010, and Section 3 of the Judicature Act. 22.The Appellants submit that the Respondents' counterclaim, filed in 2021, is time-barred as the cause of action arose in 1975. The Respondents counter that they are already in possession and thus not seeking to 'recover' land within the meaning of Section 7 of the Limitation of Actions Act. 23.This Court notes the general proposition that where a defendant is already in possession, a counterclaim for a declaratory order does not amount to an action to recover land for purposes of the limitation statute. However, this principle presupposes lawful possession. Where, as here, the foundation of the claimed title — the registration of Gaturi/Weru/1034 — was cancelled by court decree, the Respondents' possession (even if physical) does not have the character of lawful proprietary possession that would immunize the counterclaim from a limitation challenge. 24.That said, the counterclaim also seeks a declaration of title and registration, which in substance amounts to an action for recovery or assertion of land rights. Given the complexity and the fact that this ground alone would not be determinative, this Court makes no final ruling on limitation, noting that the other grounds sufficiently dispose of the appeal. 25.Having found in favour of the Appellants on the jurisdictional and legal grounds above, it is not strictly necessary to conduct a detailed re-evaluation of the evidence. However, this Court notes that the documentary evidence — including the Land Control Board consent of 6th June 1975, the subdivision and transfer records, the 1980 and 1981 letters from the Land Registrar, and the decree of 13th April 2000 — presents a complex and contested picture. What is clear is that the fundamental legal errors identified above fatally undermine the trial court's judgment, irrespective of the factual findings. 26.This Court is cognizant of the principle in Selle v Associated Motor Boat Co. Ltd [1968] EA 123 that an appellate court should be slow to disturb findings of fact by a trial court. However, where the trial court's conclusions rest on erroneous legal foundations, interference is not only justified but required. Disposition 27.For the foregoing reasons, this Court finds and holds as follows:1.The appeal is hereby Allowed.2.The judgment and orders of the learned Chief Magistrate in Embu CM-ELC No. 80 of 2013 delivered on 20th May 2025, including the dismissal of the Appellants' suit and the orders on the counterclaim, are hereby SET ASIDE in their entirety.3.The Respondents' counterclaim is hereby Dismissed.4.The decree of the Senior Principal Magistrate's Court at Embu issued on 13th April 2000 in SPMCC No. 31 of 1996, which cancelled the registration of land parcels Nos. Gaturi/Weru/1034 and Gaturi/Weru/1035 and restored the land to the original parcel No. Gaturi/Weru/705, remains valid and subsisting.5.The matter is remitted to the Chief Magistrate's Court at Embu for retrial of the Appellants' substantive claim for eviction and mesne profits before a different magistrate, with directions that:a.The trial court is to proceed on the basis that land parcel No. Gaturi/Weru/705 is the subsisting parcel as confirmed by the Embu District Land Registrar;b.The trial court shall determine the question of the 3 acres directed to be transferred to the Respondents' predecessor under the 2000 decree and whether the conditions of that transfer have been complied with;c.The parties may, with leave of the trial court, file and serve supplementary pleadings and additional evidence as may be necessary to give effect to this ruling.6.The Respondents shall bear the costs of this appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT EMBU THIS 21ST DAY OF MAY, 2026.HON. E.C CHERONOELC JUDGE, EMBUIn the presence of;1. Mr. Njagi H/B for Joe Kathungu for the Appellant2. Respondent/Advocate-absent3. M/S Ruth C/A