[2009] KEHC 292 (KLR)
The court found that the Rongo Land Disputes Tribunal exceeded its statutory jurisdiction under section 3(1) of the Land Disputes Tribunal Act by awarding the applicant's registered land to the interested party, effectively nullifying the applicant's title deed, which the tribunal had no power to do. Additionally,...
Source-derived case information.
- Citation
- [2009] KEHC 292 (KLR)
- Parties
- Applicant: Abel Odago Onyango; Respondent: Paul Odera Okode; Respondent: Rongo Land Disputes Tribunal; Respondent: Resident Magistrate’s Court, Rongo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 5 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judicial Review (certiorari and Prohibition)
- Outcome
- Application allowed. Orders of certiorari and prohibition granted.
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Land Ownership Disputes, Certiorari, Prohibition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abel Odago Onyango
Applicant
Paul Odera Okode
Respondent
Rongo Land Disputes Tribunal
Respondent
Resident Magistrate’s Court, Rongo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judicial Review (certiorari and Prohibition)
Legal Issues
- 1 Whether the Rongo Land Disputes Tribunal acted in excess of its jurisdiction in awarding the suit land to the interested party.
- 2 Whether the Tribunal's decision was ultra vires section 6 of the Land Control Act and section 3(1) of the Land Disputes Tribunal Act.
- 3 Whether the Tribunal could determine a matter already pending before the High Court.
Ratio Decidendi
The court found that the Rongo Land Disputes Tribunal exceeded its statutory jurisdiction under section 3(1) of the Land Disputes Tribunal Act by awarding the applicant's registered land to the interested party, effectively nullifying the applicant's title deed, which the tribunal had no power to do. Additionally, the tribunal proceeded to determine a dispute that was already pending before the High Court, further acting outside its authority. As none of the respondents opposed the application, and the applicant established that the tribunal's decision was ultra vires and made in excess of jurisdiction, the court granted the orders of certiorari and prohibition as sought.
Court Disposition
Application allowed. Orders of certiorari and prohibition granted.
Orders
- An order of certiorari is issued to quash the decision of the Rongo Land Disputes Tribunal delivered on or about 10th August, 2006.
- An order of prohibition is issued restraining the Resident Magistrate’s Court at Rongo from hearing, determining, or enforcing the said tribunal decision.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA OF KISII Miscellaneous Civil Application 5 of 2008
IN THE MATTER OF AN APPLICATION BY EBEL ODAGO ONYANGO FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (CERTIORARI AND PROHIBITION)
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990
AND
IN THE MATTER OF RONGO LAND DISPUTES TRIBUNALS
AND
IN THE MATTER OF RESIDENT MAGISTRATE’S COURT AT RONGO
BETWEEN
ABEL ODAGO ONYANGO ……………………….. APPLICANT
VERSUS
PAUL ODERA OKODE ….. INTERESTED PARTY/RESPONDENT
AND
RONGO LAND DISPUTES TRIBUNAL……1ST RESPONDENT
THE RESIDENT MAGISTRATE’S COURT,
RONGO …….………………………………. 2ND RESPONDENT
RULING
The ex-parte applicant prayed for an order of Certiorari to remove into this court for purpose of quashing the decision of the 1st respondent that was delivered on/or about 10th August, 2006. The 1st respondent awarded the applicants parcel of land, L.R. No. Kamagambo/Kanyimach/787, hereinafter referred to as the “the suit land” or a portion thereof to the interested party herein, Paul Odera Okode. The applicant also prayed for an order of Prohibition directed against the 2nd respondent prohibiting her from hearing, determining and/or enforcing the decision of the 1st respondent.
The application was made on the grounds that:
·The 1st respondent acted in excess of its jurisdiction in awarding the suit land to the interested party.
·The decision of the 1st respondent was ultra viresthe mandatory provisions of section 6 of the Land Control Act.
·The 1st respondent acted ultra vires its jurisdiction as set out under section 3 (1) of the Land Disputes Tribunal Act.
·That the 1st respondent dealt with a matter that was pending before the High Court at Kisii.
The ex-parte applicant, in his affidavit in support of the application, deposed that he is the registered proprietor of the suit land. Sometimes in the year 2006, the interested party commenced proceedings against the applicant claiming the suit land or a portion thereof. The 1st respondent awarded the whole of the suit land to the interested party.
It is clear that the 1st respondent exceeded its jurisdiction as donated to it by the provisions of section 3 (1) of the Land Disputes Tribunals Act. In making the aforesaid decision, the Tribunal was in effect nullifying the applicant’s title deed and the tribunal had no power to do so.
It is also clear that at the time of giving the said award there was a case pending before this court in relation to the suit land, the same being HCCC No. 3 of 2000.
None of the respondents herein opposed the aforesaid application. I am satisfied that the orders sought by the ex-parte applicant are merited and I grant the same. The 1st respondent shall bear the costs of this application.
DATED, SIGNED AND DELIVERED AT KISII THIS 10TH DAY OF DECEMBER, 2009.
D. MUSINGA
JUDGE.
10/12/2009
Before D. Musinga, J.
Mobisa – cc
Mr. Mboya for the Applicant
N/A for the Respondent
Court:Ruling delivered in open court on 10th December, 2009.
D. MUSINGA
JUDGE.