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ELCDismissedKitale HCCC (unspecified number)· [2014] KEELC 53 (KLR)

David Gombe Githinji v Mary Wanjiku Githinji (legal representative of Andrew Maina Githinji) [2014] KEELC 53 (KLR)

High Court of Kenya
18 December 2014
2,011 words in judgment
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The bottom line

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The High Court in Kitale dismissed a landowner's suit because a Land Disputes Tribunal award adopted as judgment remains binding unless properly set aside on appeal or judicial review.

What this practically means

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Executive summary

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The plaintiff, registered owner of LR. No. Kaisagat/Chepkoilel Block 5/Amuka/42, sued the legal representative of his deceased brother-in-law seeking a declaration that he is the sole and legal owner of the suit land and an injunction against interference. The deceased had obtained an award from the Kwanza Land Disputes Tribunal entitling him to 3 acres of the plaintiff's land, which was adopted as judgment in Kitale CM Land Case No. 63 of 2003. The plaintiff's Misc. Civil Application No. 94 of 2003 seeking to quash the tribunal decision was struck out by the High Court as incompetent, after which he filed this suit contending the tribunal lacked jurisdiction over registered land, that the deceased lacked locus standi, and that the award was void for want of Land Control Board consent. Justice E. Obaga held that the Land Disputes Tribunal Act provided a special procedure for challenging tribunal verdicts - appeal or judicial review - which the plaintiff had attempted and failed, and that he could not achieve the same result through a plaint. The suit was also found res-judicata, as the same parties and land had been determined by the adopted tribunal verdict, which remained binding until set aside through proper procedure. The Court of Appeal authority relied on by the plaintiff was distinguished. The suit was dismissed with costs to the defendant on 18th December 2014.

Key legal issues

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01

Whether the plaintiff could challenge the tribunal's decision by way of a plaint

Holding

He could not; the Land Disputes Tribunal Act provided a special procedure (appeal or judicial review) which had to be exhausted, and his failed quashing application precluded a fresh suit

Reasoning

The repealed Land Disputes Tribunal Act provided a special procedure for aggrieved parties: appeal to the Provincial Land Disputes Appeals Committee, appeal to the High Court on points of law, or judicial review to quash the tribunal decision and its adoption. The plaintiff attempted judicial review and failed. Having failed, he could not achieve the same result through a plaint; the suit was improperly before the court.

p. 3
02

Whether the suit is res-judicata

Holding

Yes; the same parties and same suit land were before the Kwanza Land Disputes Tribunal, whose verdict was adopted as judgment in Kitale CM Land Case No. 63 of 2003 and had never been set aside

Reasoning

The tribunal proceedings concerned the same land and the same parties; the verdict was adopted as judgment of the court. Whether the tribunal had jurisdiction could not be raised in this suit; it should have been attacked under the Act. Until set aside by proper procedure, the adopted verdict had determined the dispute.

p. 4
03

Whether the Court of Appeal decision cited by plaintiff's counsel assisted him

Holding

It was distinguishable because in that case the High Court had quashed the tribunal decision for want of jurisdiction, whereas here the plaintiff's quashing application failed

Reasoning

The cited Court of Appeal decision upheld quashing of a tribunal decision for lack of jurisdiction because there the High Court had actually quashed the decision and the magistrate's adoption of it. Here the plaintiff failed to have the tribunal verdict quashed and was faulting it afterwards, so the authority did not apply.

p. 4

Legal principles established

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  • A party aggrieved by a Land Disputes Tribunal verdict must exhaust the procedures under the Land Disputes Tribunal Act and cannot challenge the decision by filing a fresh suit by plaint
  • A tribunal award adopted as judgment of the court remains binding and determines the dispute unless set aside through proper procedure

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs to the defendant

Authorities

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Legislation

  • Land Disputes Tribunal ActNo. 18 of 1990 (repealed)
  • Registered Land Act
  • Land Control Act

Cases cited (3)

  • Emily Jepkemei Ngeyoni & Another vs. Nicholas Kipchumba Kogo & Another
    Eldoret HCCC No. 26 of 2001
  • George Jumba vs. Joseph Metto
    Eldoret HCCC No. 200 of 1996 (unreported)
  • Costa Sote Kandie (suing as a legal representative of the Estate of the late Cheptum Arap Chesire) Vs. Legetyo Kosyin (Noigam Women Group) & Another
    Kitale HCCC No. 31 of 2011
Jurisdiction invoked
Original civil jurisdiction of the High Court over a plaint challenging a Land Disputes Tribunal award adopted as judgment

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, "David Gombe Githinji v Mary Wanjiku Githinji (legal representative of Andrew Maina Githinji) [2014] KEELC 53 (KLR)", Case Analysis (2014). Kitale HCCC (unspecified number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/53/eng@2014-12-18

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