[2008] KEHC 2309 (KLR)
The court found that the Provincial Land Disputes Appeals Committee and the Central Divisional Land Disputes Tribunal lacked jurisdiction to entertain or determine the dispute over land parcel Inoi/Ndimi/86 because the issue of ownership had already been conclusively determined in Senior Resident Magistrate...
Source-derived case information.
- Citation
- [2008] KEHC 2309 (KLR)
- Parties
- Appellant: Cosmas Kanja Mbuteti; Respondent: Jackson Murage; Respondent: Nahashon Kimotho; Respondent: Paul Kabingo; Respondent: Daniel Gachoki
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 6 of 2000
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Res Judicata, Land Ownership Disputes, Jurisdiction of Tribunals, Succession and Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cosmas Kanja Mbuteti
Appellant
Jackson Murage
Respondent
Nahashon Kimotho
Respondent
Paul Kabingo
Respondent
Daniel Gachoki
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Provincial Land Disputes Appeals Committee had jurisdiction to entertain a dispute already determined by a court of competent jurisdiction.
- 2 Whether the doctrine of res judicata applied to the dispute over land parcel Inoi/Ndimi/86.
- 3 Whether the Tribunal's decision contravened the distribution of land as confirmed in Succession Cause No. 5 of 1986.
Ratio Decidendi
The court found that the Provincial Land Disputes Appeals Committee and the Central Divisional Land Disputes Tribunal lacked jurisdiction to entertain or determine the dispute over land parcel Inoi/Ndimi/86 because the issue of ownership had already been conclusively determined in Senior Resident Magistrate Succession Cause No. 5 of 1986. The doctrine of res judicata barred the re-litigation of the matter, and the Tribunal's attempt to alter the distribution of land as confirmed in the succession proceedings was ultra vires. The appeal was therefore dismissed for lack of merit, as the Tribunal's decision was contrary to law and the established principle that tribunals cannot override...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 6 of 2000
COSMAS KANJA MBUTETI………….....……………………..APPELLANT
VERSUS
JACKSON MURAGE…………………………………...1ST RESPONDENT
NAHASHON KIMOTHO…………..……………………2ND RESPONDENT
PAUL KABINGO………………...………………………3RD RESPONDENT
DANIEL GACHOKI……………………………………4TH RESPONDENT
JUDGMENT ON APPEAL
This appeal arises out of proceedings before ProvincialLandDisputes Appeals Committee in Appeal No. 101/1999.
The grounds are that the Committee misunderstood the doctrine of Res Judicata that the Tribunal misdirected itself on the legal implication of ruling in Succ.No.5/86. That the Tribunal failed to appreciate that the Senior Resident Magistrate was aware of Succession No. 5/86 when referring the dispute to the Tribunal on 17/3/1998. That the Tribunal exceeded its jurisdiction on terminating the appeal to uphold the decision of the lower court. The decision of the Provincial Land Disputes Appeals Committee in its decision given on 28/2/2000 found that the dispute before it was Res judicata the Resident Magistrate’s court at Kerugoya having confirmed the decree in succession case.
The records shows that in the Central Divisional Land Disputes Tribunal Case No. 9 of 1997 in respect of Inoi/Ndimi/86 the claimant was Cosmas Kanja Mbuteti and Objector was Jackson Murage, Paul Kabingo, Nahashon Kimotho, Daniel Gachoki Muchiri. That Tribunal awarded Cosmas Kanja Mbuteti ¼ acre which was to be apportioned from the whole parcel Inoi/Ndimi/86.
In the Central Provincial Appeals Committee it was alleged that the issue of ownership of plot No. Inoi/Ndimi/86 had been decided in Senior Resident Magistrate Succ.No. 5 of 1986 when the land was distributed among the persons named in Certificate of confirmation of grant and therefore the decision of Central Land Disputes Tribunal was wrong and contrary to Section 13 of Land Disputes Act. (Act 18 of 1990. ) The certificate of confirmation issued on 14/12/1993. This was already before the decision of the Land Disputes Tribunal.
I have perused the record of all the 2 decisions of the tribunals and it is quite clear that the Tribunal have no power to entertain dispute in matters already decided by a court of competent jurisdiction. What the parties intended to do is to undo the distribution of the land in question which was distributed in a Succession case.
I find no merit in this appeal and the same is hereby dismissed.
Dated this 21st May, 2008.
J. N. KHAMINWA
JUDGE
21/5/2008
Khaminwa – Judge
Mr. Njagi
Mr. Paul present in person
Read in open court.
J. N. KHAMINWA
JUDGE