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Court of AppealPartially AllowedCivil Appeal No. 59 of 2017

Isaac Julius Sang v Kipsaina Arap Mursoi [2019] KECA 124 (KLR)

Court of Appeal
28 November 2019
2,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out a 20-year land judgment because the High Court had no power to hear land title disputes after the 2010 Constitution.

What this practically means

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Executive summary

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This Court of Appeal judgment at Eldoret, comprising a single judgment of the court delivered by Makhandia, Kiage and Odek JJ.A, concerned Civil Appeal No. 59 of 2017 by Isaac Julius Sang against Kipsaina Arap Mursoi, and was heard together with a related appeal by Ezekiel Kiplel (Civil Appeal No. 55 of 2017). Both appeals challenged the judgment of Kimondo J of the High Court at Eldoret delivered on 27th April 2017 in Civil Suit No. 201 of 1997, which cancelled as fraudulent the transfers of several plots carved out of the respondent's land, restored titles, and awarded damages. The determinative ground was that the High Court lacked jurisdiction over a dispute concerning title to land. The court held that under Article 165(5)(b) of the Constitution the High Court is expressly prohibited from hearing matters reserved for the Environment and Land Court under Article 162(2), and that section 30 of the Environment and Land Court Act could not save part-heard proceedings before the High Court. Parliament or any other authority could not confer such jurisdiction on the High Court, even to cure a transitional hiatus. Applying the Lillian S doctrine and the Supreme Court's decision in Karisa Chengo, the court declared the post-promulgation High Court proceedings and judgment a nullity, quashed and set them aside in their entirety, and remitted the matter to the Environment and Land Court in Eldoret for expedited hearing before a judge other than Munyao J. Each party was ordered to bear its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court had jurisdiction to hear and determine a suit relating to title to and occupation of land after the promulgation of the Constitution of Kenya 2010, which vests such disputes in the Environment and Land Court
  2. 2.Whether section 30 of the Environment and Land Court Act permitted a part-heard land matter to proceed to completion before the High Court
  3. 3.What orders should follow if the High Court lacked jurisdiction

Key legal issues

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01

Whether the High Court had jurisdiction over a land title dispute after the Constitution of Kenya 2010

Holding

The High Court had no jurisdiction; Article 165(5)(b) prohibits it from hearing matters within the jurisdiction of the courts contemplated under Article 162(2), including the Environment and Land Court.

Reasoning

Article 165(5)(b) is couched in express mandatory exclusionary and prohibitory terms, removing from the High Court all matters falling within the jurisdiction of courts under Article 162(2), which includes disputes relating to the use and occupation of, and title to, land. The Environment and Land Court is established under its own statute. No transitional rationale, parliamentary conferral or pragmatism could restore to the High Court jurisdiction the Constitution had removed. The High Court proceedings post-promulgation were therefore a nullity.

p. 3
02

Whether section 30 of the Environment and Land Court Act saved the part-heard suit in the High Court

Holding

No. Section 30 could not override the constitutional prohibition; the reliance on it by Munyao J and Kimondo J was erroneous.

Reasoning

Both the High Court judge and the Environment and Land Court judge had proceeded on the understanding that section 30 of the Environment and Land Court Act allowed part-heard land matters to continue in the High Court. The Court of Appeal held this understanding erroneous because a statutory provision cannot confer jurisdiction on the High Court over matters the Constitution expressly prohibits it from hearing. The apex court's pronouncement in Karisa Chengo that jurisdiction flows only from the Constitution or legislation reinforced this conclusion.

p. 3
03

The duty of an appellate court where jurisdiction of the first instance court is challenged

Holding

An appellate court must interrogate the jurisdictional issue in limine and, if the lower court lacked jurisdiction, declare the decision a nullity without considering the merits.

Reasoning

Because a decision rendered without jurisdiction is a nullity, the jurisdictional question must be resolved first on appeal. The Court noted that although Sang's counsel did not elaborate on ground 10 in submissions, the jurisdictional ground was live and, in any event, jurisdiction is so fundamental it cannot be ignored, invoking Nyarangi JA's dictum in the Lillian S case that without jurisdiction a court must down tools.

p. 2

Legal principles established

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  • The High Court is absolutely prohibited by Article 165(5)(b) of the Constitution from hearing and determining disputes relating to the environment and the use and occupation of, and title to, land; that prohibition cannot be overcome by transitional considerations, consent or pragmatism.
  • Proceedings and judgments of a court that hears and determines a matter outside its jurisdiction are a nullity, and an appellate court must interrogate jurisdiction in limine and, if jurisdiction is lacking, declare the decision a nullity without addressing the merits.
  • Section 30 of the Environment and Land Court Act could not constitutionally permit a part-heard land matter to proceed to completion before the High Court.

Court orders

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  1. 1.The proceedings of the High Court from the time the Constitution was promulgated are declared a nullity
  2. 2.The judgment of the High Court is declared a nullity and both the proceedings and judgment are quashed and set aside in entirety
  3. 3.The matter is remitted to the Environment and Land Court in Eldoret for expedited hearing on priority basis before a judge of that court, other than Munyao, J
  4. 4.Each party shall bear its own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Eldoret
Civil Suit No. 201 of 1997
Jurisdiction invoked
Section 3(1) and (2) of the Appellate Jurisdiction Act read with Article 164 of the Constitution (first appeal to the Court of Appeal); jurisdictional issue turns on Article 162(2) and Article 165(5) of the Constitution
Consolidated with
Civil Appeal No. 55 of 2017

Relief refused

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Determination of the appeal on the merits of the land dispute

Once the first-instance court was found bereft of jurisdiction, the appellate court had to declare the decision a nullity without considering the appeal on the merits

p. 2

Costs

Each party shall bear its own costs of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That which the Constitution prohibits remains prohibited absolutely.
p. 3Constitutional exclusivity of jurisdiction over land disputes
The upshot is that the proceedings of the High Court from the time the Constitution was promulgated were a nullity. The judgment of the High Court was also a nullity and both are quashed, and set aside in entirety.
p. 3Nullity of proceedings and judgment without jurisdiction
Costly and inconvenient as it may be, the order that we must make is that this matter is remitted to the Environment and Land Court in Eldoret for expedited hearing on priority basis before a judge of that court, other than Munyao, J.
p. 3Final orders - remittal to the Environment and Land Court
The parties shall each bear own costs of this appeal.
p. 3Costs order
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 2Fundamental nature of jurisdiction (quoting Lillian S)

Issues in the judgment

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minor

The judgment inconsistently refers to the transitional statute as the 'Land Court Act' in the excerpted High Court judgment while elsewhere discussing the Environment and Land Court Act; the exact statutory name in the High Court's reasoning is unclear from the text.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Isaac Julius Sang v Kipsaina Arap Mursoi [2019] KECA 124 (KLR)", Case Analysis (2019). Civil Appeal No. 59 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/124/eng@2019-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.