[2008] KEHC 3392 (KLR)
The court found that the Interested Party's claim before the Tribunal was not a boundary dispute but a claim for the return of a portion of land, which is a matter of title. Since title had already issued to the applicants, the Tribunal lacked jurisdiction under Section 3 of the Land Disputes Tribunal Act to...
Source-derived case information.
- Citation
- [2008] KEHC 3392 (KLR)
- Parties
- Applicant: Christine Schneider; Applicant: Ibrahim Sidik; Respondent: District Land Dispute Tribunal (Matuga Division Kwale); Respondent: The Senior Resident Magistrate Kwale Law Courts; Interested Party: Muhamed Sudi Boya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 1058 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Judicial Review Application
- Outcome
- Application allowed with costs to the applicants to be paid by the Interested Party.
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Land Title Disputes, Certiorari, Prohibition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Schneider
Applicant
Ibrahim Sidik
Applicant
District Land Dispute Tribunal (Matuga Division Kwale)
Respondent
The Senior Resident Magistrate Kwale Law Courts
Respondent
Muhamed Sudi Boya
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Judicial Review Application
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to determine matters relating to title to land.
- 2 Whether the decision of the Tribunal and the subsequent judgment of the Magistrate's Court should be quashed by certiorari.
- 3 Whether prohibition should issue to restrain the Magistrate from issuing a decree based on the Tribunal's decision.
Ratio Decidendi
The court found that the Interested Party's claim before the Tribunal was not a boundary dispute but a claim for the return of a portion of land, which is a matter of title. Since title had already issued to the applicants, the Tribunal lacked jurisdiction under Section 3 of the Land Disputes Tribunal Act to entertain the matter. Consequently, the Magistrate's judgment based on the Tribunal's decision was a nullity. The court therefore granted the orders of certiorari to quash the Magistrate's judgment and prohibition to restrain the Magistrate from issuing a decree pursuant to that judgment.
Court Disposition
Application allowed with costs to the applicants to be paid by the Interested Party.
Orders
- An order of certiorari is issued to quash the judgment of the Kwale Senior Resident Magistrate in Land Case No. 9 of 2006.
- An order of prohibition is issued restraining the Magistrate from issuing a decree pursuant to the quashed judgment.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Misc Crim Appli 1058 of 2006
1. CHRISTINE SCHNEIDER
2. IBRAHIM SIDIK AS TRUSTEES AND/OR
CUSTODIANS OF THETSIMBA CHILDREN’S HOME – KWALE :::::::::::::::::::::::::: APPLICANTS
VERSUS
1. DISTRICT LAND DISPUTE TRIBUNAL(MATUGA DIVISION KWALE )
2. THE SENIOR RESIDENT MAGISTRATEKWALE LAW COURTS ::::::::::::::::::::: RESPONDENTS
AND
MUHAMED SUDI BOYA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: INTERESTED PARTY
*****************
RULING
In this application the Ex-parte Applicants seek the judicial review orders of certiorari and prohibition. The order of certiorari is sought to bring to this court and quash the judgment of the Kwale Senior Resident Magistrate in Land Case No. 9 of 2006 given on 15th June 2006 in which the learned Senior Resident Magistrate purported to enter judgment in accordance with the decision of the Matuga/Kwale Land Disputes Tribunal (the Tribunal). That of prohibition is sought to prohibit the same magistrate from issuing a decree pursuant to that judgment.
The application is based on the grounds that the Tribunal was biased against the Ex-parte Applicants and had no jurisdiction to entertain a matter of title arising from a contract between the Interested Party and the Ex-parte Applicants.
Upon being served the Interested Party filed through counsel grounds of opposition alleging that the application is vexatious, misconceived and an abuse of the process of court and that the orders sought are ambiguous and untenable. The Respondents on their part did not respond. Mrs. Umara, learned State Counsel told me that she has no instructions from them at all.
Though served with the hearing notice neither the Interested Party nor his advocate appeared in court to oppose this application. That notwithstanding I have considered the Interested Party’s grounds of opposition and found them to be frivolous and totally unmeritorious.
The Tribunal’s record shows the Interested Party’s claim before it to have been that he transferred to the Ex-parte Applicants a larger piece of land than he had contracted to sell to them. I agree with Mr. Kibara for the Ex-parte Applicants that that is not a boundary dispute but a claim for the return to the Interested Party a portion of 0. 65 of a hectare which he contended was in excess of what he had sold to the Ex-parte Applicants. As Title had already issued to the Ex-parte Applicants the Interested Party’s claim went beyond the ambit of the Tribunals jurisdiction. As this court and the Court of Appeal has held in numerous cases the Land Disputes Tribunals have no jurisdiction under Section 3 of the Lands Disputes Tribunal Act No. 180 of 1990 to entertain matters of title. I therefore allow this application as prayed with costs to the Ex-parte Applicants to be paid by the Interested Party.
DATED and delivered this 17th day of January 2008.
D.K. MARAGA
JUDGE