[2015] KEHC 6151 (KLR)
The court found that the Land Disputes Tribunal and the Provincial Appeals Committee lacked jurisdiction to entertain the respondent's claim because the dispute did not fall within the categories specified under Section 3 of the repealed Land Disputes Tribunals Act. The dispute arose from a sale agreement and not...
Source-derived case information.
- Citation
- [2015] KEHC 6151 (KLR)
- Parties
- Appellant: Wanjiru Wairagu Wanjohi; Respondent: Kanunu Kaurrai
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 163 of 2010
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- CM Kariuki
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Limitation of Actions, Land Sale Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanjiru Wairagu Wanjohi
Appellant
Kanunu Kaurrai
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Land Disputes Tribunal and the Provincial Appeals Committee had jurisdiction to determine the dispute over the suit land.
- 2 Whether the respondent's claim was time-barred under the Limitation of Actions Act.
- 3 Whether the dispute fell within the categories of disputes that the Land Disputes Tribunal could entertain under Section 3 of the repealed LDT Act.
Ratio Decidendi
The court found that the Land Disputes Tribunal and the Provincial Appeals Committee lacked jurisdiction to entertain the respondent's claim because the dispute did not fall within the categories specified under Section 3 of the repealed Land Disputes Tribunals Act. The dispute arose from a sale agreement and not from issues of subdivision, boundary, occupation, or trespass. Furthermore, the respondent's claim was time-barred under Section 7 of the Limitation of Actions Act, as it was brought more than 40 years after the original sale transaction. The court concluded that both the District Tribunal and the Provincial Appeals Committee acted without jurisdiction, and therefore, the appeal...
Court Disposition
appeal allowed
Orders
- The appeal is allowed with costs to the appellant.
- The awards of the Land Disputes Tribunal and the Provincial Appeals Committee are set aside.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
ELC APPEAL NO.163 OF 2010
WANJIRU WAIRAGU WANJOHI …………..……………….. APPELLANT
VERSUS
KANUNU KAURRAI …………………….…………………. RESPONDENT
J U D G M E N T
1. This is an appeal arising from the decision of the Provincial Land Dispute Award. The Appellant being dissatisfied with the award of the Appeals Committee lodged the instant appeal parading 12 grounds of mixed facts and law under Section 8(9) of LDT Acts repealed. This court can only deal with issues of law. All issues of law gravitate around the core issue of jurisdiction of both the first and the second lawyer in handling of the instant dispute.
2. The Appelant brief case is that her late husband bought Ngong/Ngong/1143 in 1966 and same was transferred to him on 29. 5.1968 when the title cited was issued. The late appellant husband passed on in 1989 and in 2008 the suit land was transmitted to the beneficiaries via succession process and shared the same giving rise to various other title deeds now held by the 8 beneficiaries.
3. In August 2009 via LDT case No.T.C.512/08/09 the Respondent filed the claim over the suit land in which the tribunal ordered 4 acres be excised and given to Respondent from the suit land. This prompted the filing of appeal No.74/09 to the Provincial Appeals Committee at Nakuru challenging the award. The aforesaid appeal was upheld despite the fact that the grounds of appeal raised was want of jurisdiction.
4. The Appellant’s core claim is that the claim was not within the mandate of the Land Disputes Tribunal under Section 3 of LDT Act now repealed as it was neither sub division nor boundary issue; claim to occupy or work no land or claim for trespass. The dispute was founded on sale agreement in which the Appellant’s husband purchased the suit land from the Respondent. In any event the claim was time barred as it was brought after 40 years from the date of sale of land.
5. The Respondent is of different view. The Respondent avers that the claim was based on encroachment of a portion of Respondent land which amounted to trespass which is within the mandate of the tribunal. After going through the materials before the court and the submissions by the parties, it is undisputed that the claim arose out of the sale transaction between the appellant’s deceased husband and the Respondent way back in 1966 over suit land.
6. The suit land was occupied and developed by the Appellant’s family for over 40 years. Until the Appellant husband died in 1989, there was no claim over the suit land. The land was transmitted and shared to the 8 beneficiaries. The Respondent lodged claim in which he was awarded 4 acres of the suit land. The provisions of Section 3 of the LDT Act now repealed lists the issues which could be handled by the tribunal namely;
Subdivision and or determination of the boundaries to land
Right to occupy or work on land and
Trespass to land.
7. In the instant suit, none of the Respondent claim land within the above 3 issues. The claim was that the land paid for was 4 acres but the Appellant got 6 acres. The claim for excess land was even under Section 7 of Limitations Act Cap 22 time barred. The District Tribunal had no jurisdiction to entertain the claim and so is the Provincial Appeals Committee. The court thus finds the appeal has merit and same is allowed with costs.
Dated and Delivered at Machakos, this 13thday of February, 2015.
CHARLES KARIUKI
JUDGE