The Environment and Land Court has thrown out an appeal by a man who claimed the right to farm a portion of land based on a tribunal decision that was made three years after the registered owner had died.
Justice Anne Koross dismissed the appeal by Alexander Dick Katona, who had been sued for trespass by the family of the late John Kilonzo Kioko over land parcel number Matungulu/Katine/890.
In a ruling that reinforces a fundamental principle of law, the judge declared that the Land Disputes Tribunal case filed in 2005 against Mr Kioko, who died in September 2002, was a “nullity” from the very beginning.
“You cannot file a lawsuit against a dead person,” Justice Koross stated, citing a long line of Court of Appeal decisions.
The dispute has its roots in a step-sibling relationship. The late Kioko and Mr Katona shared the same father but different mothers. Mr Katona had occupied and farmed a portion of the suit land, claiming he did so following a decision by a Land Disputes Tribunal in case No. 43 of 2005.
That tribunal, he argued, had ordered that a portion of the property be allocated for the benefit of his family. But the trial court in Kangundo had ruled against him in July 2024, prompting the appeal now dismissed by the Environment and Land Court.
The judge went further, finding that the Land Disputes Tribunal lacked jurisdiction over the matter in the first place.
Evidence showed the land was still under the adjudication process when the tribunal heard the case, having been registered in 1995 but only receiving its title deed on November 28, 2014.
Under Section 2 of the repealed Land Disputes Tribunals Act, the tribunal had no authority to handle land within an adjudication section. Those disputes, the judge explained, should have followed the elaborate process under the Land Adjudication Act, moving from the land adjudication committee to the arbitration board, then to the land adjudication officer, and finally to the Minister.
“The appellant lacks clarity regarding the adjudicative mechanisms that applied to the suit land and has conflated the procedures,” Justice Koross observed.
The judge also found that the tribunal proceedings violated the deceased’s constitutional right to a fair hearing under Article 50.
“The owner of the suit land was not made a party to those proceedings. Orders could not be issued against him,” the ruling stated, invoking the Latin legal maxim audi alteram partem, hear the other side.
The court noted that even the identity of the respondents in the tribunal case was murky, with “Ndambuki Kilonzo and two others” listed as objectors, without clarity on who the others were.
Katona had argued that the trial magistrate was biased and failed to consider his evidence. But the appellate court found no evidence of bias and said the magistrate had correctly analysed the facts.
“The appeal lacks merit,” Justice Koross ruled, dismissing it entirely and upholding the lower court’s judgment.
