[2004] KECA 102 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NYERI

(CORAM: O’KUBASU, GITHINJI & WAKI, JJ,A)

CIVIL APPEAL NO. 259 OF 2000

BETWEEN

BEATRICE M’MARETE ……………………………………………… APPELLANT

AND

1. REPUBLIC )

2. THE DISTRICT COMMISSIONER, MERU)

3. THE MERU DISPUTES TRIBUNAL ) ……………… RESPONDENTS

EX-PARTE

4. JOHN GITONGA MBUI )

(Appeal from the ruling and order of the High Court of Kenya at

Meru (Aganyanya, J) dated 12th June, 2000

in

H.C. Misc. Application No. 92 of 1999)

***********************

JUDGMENT OF THE COURT

This is an appeal from the ruling of the superior court (Aganyanya, J) delivered on 12th June, 2000.

The background to this appeal is that Beatrice M’Marete was the claimant in the Land Disputes Tribunal of Central Meru inLand Case Nos. 31 of 1998. Francis Muriithi M’Marete and John Gitonga Mbui were the objectors. The dispute related to parcel of land No. Nyaki/ Mulathankari/1680 and 1681. The decision of the Tribunal was as follows:

“The panel of elders after a long discussion decide and award that the parcels of land Nos. Nyaki/Mulathankari/ 1680 and 1681 in which the claimant’s homestead and their properties are, be awarded to the claimant, Beatrice Marete. Any Government fees and taxes be paid by the claimant.”

As a result of the above, an application for judicial review was filed (in the High Court of Kenya at Meru) under Order LIII rules 3, 4, 5 and 6 of the Civil Procedure Rules for the following orders:-

“1. That this honourable Court do call for the award of the Meru Central Land Disputes Tribunal No. 31 of 1998 review it or quash it by way of certiorari.

2. That Meru Central Land Disputes Tribunal be restrained by way of prohibition from entertaining issues concerning land parcels Nos. NYAKI/MULATHANKARI/1678, 1679, 1680 and 1681

3. That costs be provided for.”

That application was brought mainly on the ground that the Land Disputes Tribunal of Meru Central had no jurisdiction to determine the dispute. There was another ground to the effect that the said Tribunal conducted its proceedings casually without due regard to the rules of natural justice. There was yet a third and rather interesting ground to the effect that the elders who constituted the tribunal were people of questionable (Beatrice).

The learned Judge considered all that was presented before him and in doing so had the following observations in his ruling:-

“The issue in this application is whether the Land Disputes Tribunal Meru Central had any jurisdiction to deal with this dispute and to make an (sic) award it did.

The power for Land Dispute Tribunals to deliberate over land disputes is contained in the Land Disputes Tribunal Act No. 18 of 1990. Section 3 of the Act provides for the jurisdiction of the Tribunals to deliberate and decide on disputes relating to trespass to land, disputes relating to boundaries and one’s right to occupy and work on land.”

After considering the rival submissions as regards claims based on trust and the provisions ofsection 143 of the Registered Land Act (Cap. 300 Laws of Kenya) the learned Judge directed his mind to the power of the High Court in dealing with applications for judicial review. On this, he made what we consider correct observations when he said:-

“The power of the High Court to call into court the proceedings, Judgment or decree of an inferior tribunal for the purposes of quashing the same and/or to make an order of prohibition comes into play where the inferior tribunal makes such decisions without or in excess of its jurisdiction, or in contravention of rules of natural justice.”

Having considered the nature of the dispute that was deliberated upon by the Land Disputes Tribunal and in view of what he thought to be the relevant provisions of the law as regards jurisdiction of the Land Disputes Tribunal, the learned Judge allowed the application by concluding his ruling thus:-

“Given the provisions of section 3 of the Land Disputes Tribunal Act No. 18 of 1990 aforesaid, I have come to the conclusion that the Meru Central Land Disputes Tribunal was the wrong forum for the deliberation of Beatrice’s complaint, even if section 30 of the Registered Land Act applied.

I allow the application filed in this court on 5th May, 1999 and call into this court the undated decision of the Meru Central Land Disputes Tribunal for quashing.

But in view of the surrounding circumstances of the complaint subject of this application, I order that each party bears his/her/their own costs of the application.”

It is that ruling that provoked this appeal in which the appellant, Beatrice M’Marete, through her advocate filed the following five grounds of appeal:-

“1. That the learned Judge erred in law in calling to court for quashing, the decision of the Meru Central Land Disputes Tribunal.

2. The learned Judge erred in law in holding that the Meru Central Disputes Land Tribunal (sic) had no jurisdiction to entertain the matter before it.

3. The learned Judge erred in law in failing to find and hold that the Respondent, if dissatisfied with the order of the Tribunal, should have followed the procedure laid down vide Sec. 8 of the land Disputes Tribunal Act, 1990.

4. The learned Judge erred in law and fact in considering extraneous matters to arrive at his decision.

5. The learned trial Judge further erred in law in proceeding with the hearing of the main Notice of Motion in the absence of service upon the District Commissioner, Meru and the Meru Land Disputes Tribunal who were named as parties therein.”

The appeal was argued before us on 28th October, 2004 when Mr. Momanyi, for the appellant, raised the issue of procedure adopted in bringing the application in the High Court. In his view, the application ought to have been brought by way of Chamber Summons and not by Notice of Motion. For that reason, Mr. Momanyi submitted that leave granted by the High Court pursuant to the Notice of Motion was defective. On the issue of jurisdiction, Mr. Momanyi submitted that the Tribunal had jurisdiction and hence the learned Judge was wrong in his ruling when he allowed the application. We were therefore urged to allow this appeal with costs both in this Court and in the superior court.

Mr. Kibera, for the respondents, strongly opposed the appeal. In his view, the main issue before the superior court was the jurisdiction of the Land Disputes Tribunal. He submitted that the dispute involved title to land, as the Tribunal was asked to determine ownership. He pointed out that the Tribunal proceeded to determine a trust, a matter on which it had no jurisdiction. In urging us to dismiss this appeal, Mr. Kibera concluded by stating that the ruling of the Tribunal had the effect of canceling the title.

We have considered the rival submissions in this appeal and it would appear to us that the main issue relates to whether the Land Disputes Tribunal of Central Meru had jurisdiction to determine the dispute before it. We have already set out at the commencement of this judgment the final decision of the Tribunal. It was to the effect that the panel of elders awarded the parcels of land Nos. Nyaki/Mulathankari/1680 and 1681 to the claimant (Beatrice) who is the appellant before us. These pieces of land were registered underRegistered Land Act (Cap. 300 Laws of Kenya). Awarding land to the claimant meant she acquired an interest in it by virtue of that award. In order to put that ruling into effect, the appellant would have to effect it by rectifying or canceling the titles. The issue is whether the Tribunal had jurisdiction to do so. Section 3(1) of the Land Disputes Tribunals Act 1990 provides:

“(1) Subject to this Act, all cases of a civil nature involving a dispute as to:-

(a) the division of, or the determination of boundaries to land including land held in common;

(b) a claim to occupy or work land; or

(c) trespass to land,

shall be heard and determined by a Tribunal established under section 4. ”

In our view, the dispute before the Tribunal did not relate to boundaries, claim to occupy or work the land, but a claim to ownership. Taking into account the provisions of section 3 of the Act and what was before the Tribunal, we are of the view that the Tribunal went beyond its jurisdiction when it purported to award parcels of land registered under Registered Land Act to the appellant. In our view, the Tribunal acted in excess of its jurisdiction.

In view of the foregoing, we are in agreement with the ruling of the learned Judge to the effect that the Tribunal went beyond its jurisdiction. It therefore follows that the superior court cannot be faulted for having allowed the application and granting the reliefs sought by that application. Consequently, we find no merit in this appeal and we order that the same be and is hereby dismissed. Considering that it was the Tribunal that acted without jurisdiction and as the dispute relates to family land, we exercise our discretion on costs by making an order that each party bears its own costs here and in the court below. We so order.

Dated and delivered at Nyeri this 5th day of November, 2004.

E.O. O’KUBASU

……………………..

JUDGE OF APPEAL

E.M. GITHINJI

………………………

JUDGE OF APPEAL

P.N. WAKI

……………………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR