[2009] KEHC 2325 (KLR)
The court found that the Uriri Land Dispute Tribunal acted in excess of its jurisdiction by entertaining a claim of ownership against a registered proprietor, contrary to section 3(1) of the Land Disputes Tribunal Act and the Registered Land Act. Consequently, the adoption of the Tribunal's award by the Principal...
Source-derived case information.
- Citation
- [2009] KEHC 2325 (KLR)
- Parties
- Applicant: Lucas J. Ayuko; Respondent: Uriri Land Dispute Tribunal; Respondent: Principal Magistrate’s Court (Migori); Respondent: Zadock Oyugi Njue
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 13 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Certiorari and Prohibition
- Outcome
- Application allowed. Orders of certiorari and prohibition granted as prayed.
- Judges
- AO Muchelule
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Certiorari, Prohibition Orders, Registered Land Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucas J. Ayuko
Applicant
Uriri Land Dispute Tribunal
Respondent
Principal Magistrate’s Court (Migori)
Respondent
Zadock Oyugi Njue
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Certiorari and Prohibition
Legal Issues
- 1 Whether the Uriri Land Dispute Tribunal had jurisdiction to determine a claim of ownership against a registered proprietor under the Registered Land Act.
- 2 Whether the adoption of the Tribunal's award by the Principal Magistrate’s Court (Migori) was lawful.
- 3 Whether orders of certiorari and prohibition should issue to quash and restrain enforcement of the Tribunal's decision.
Ratio Decidendi
The court found that the Uriri Land Dispute Tribunal acted in excess of its jurisdiction by entertaining a claim of ownership against a registered proprietor, contrary to section 3(1) of the Land Disputes Tribunal Act and the Registered Land Act. Consequently, the adoption of the Tribunal's award by the Principal Magistrate’s Court (Migori) and the subsequent judgment and decree were also ultra vires and void. The court therefore granted orders of certiorari to quash the Tribunal's decision and prohibition to restrain the Magistrate’s Court from enforcing the same.
Court Disposition
Application allowed. Orders of certiorari and prohibition granted as prayed.
Orders
- Order of certiorari issued to quash the decision of the Uriri Land Dispute Tribunal regarding land parcel KANYAMKAGO/KAWERE II/1198.
- Order of prohibition issued restraining the Principal Magistrate’s Court (Migori) from hearing, determining, adopting, or enforcing the Tribunal's decision regarding the land.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Miscellaneous Civil Application 13 of 2008
IN THE MATTER OF AN APPLICATION FOR COMMITTAL FOR CONTEMPT OF COURT
AND
IN THE MATTER OF DISOBEDIENCE TO COURT ORDER DATED 26TH JUNE, 2007 IN NAIROBI MISC. APPL.679 (JUDICIAL PROCEEDINGS)
AND
IN THE MATTER OF BY LUCAS J. AYUKO AGAINST ZADOCK OYUGI NJUE FOR AN ORDER OF COMMITTAL
AND
IN THE MATTER OF LUCAS J. AYUKO ……………………………. APPLICANT
VERSUS
URIRI LAND DISPUTE TRIBUNAL………………….…………1ST RESPONDENT
PRINCIPAL MAGISTRATE’S COURT (MIGORI) .…….… ... 2ND RESPONDENT
ZADOCK OYUGI NJUE ………….… INTERESTED PARTY/3RD RESPONDENT
RULING
By a Notice of Motion dated 16th July, 2007 and brought under Order 53rule 3(1) of the Civil Procedure Rules and sections 8 and 9of the Law Reform Act Cap.26 of the Laws of Kenya the applicant sought an order of certiorari to remove into this Court and quash the decision of the 1st Respondent which was made in respect of land parcel KANYAMKAGO/KAWERE II/1198. The Applicant also sought an order prohibiting the 2nd Respondent from hearing, determining, adopting and enforcing the decision of the 1st Defendant regarding the land. The application was pursuant to leave which was granted ex parte on 26th June, 2007 and which was to operate as stay. The application was made upon the grounds and matters set out in the Statutory Statement and the Replying Affidavit of the Applicant. The Respondents and the Interested Party were all served but did not respond.
The complaint by the Applicant was that he was a joint registered proprietor of the land parcel, the other owners being Loise Atieno Ayuko and Erastus Joseph Onyango Ayuko. On or about 23rd February 2006 the Interested Party lodged a claim for one acre before Migori Land Dispute Tribunal (Uriri Division) (1st Respondent). The acre was within the share of the Applicant. The 1st Respondent heard the claim after which it was decided that the land to be resurveyed by the District Land Registrar to enable the Interested Party get the one acre. It is this decision that was forwarded to the 2nd Respondent which it adopted as judgment and continued to issue a decree. It was argued by the Applicant that the 1st Respondent lacked jurisdiction to entertain the claim by the Interested Party. Reference was made to section 3(1) of the Land Disputes Tribunal Act 18 of 1990under which the Tribunal purported to act. The Court is of the view that under the section the Tribunal had no jurisdiction to entertain the Interested Party’s claim of ownership against the Applicant’s registered right under the Registered Land Act Cap 300 Laws of Kenya. (Beatrice M’Marete The Republic and Others, Civil Appeal No.259 of 2000 of Nyeri). It follows that the adoption of the award by the 2nd Respondent and the subsequent judgment and decree were also in excess of jurisdiction. It is for these reasons that the court allows the application and orders certiorari and prohibition as prayed.
Dated, signed and delivered at KISII this 15th day of June, 2009
A.O. MUCHELULE
JUDGE
15/6/2009
Before A. O. Muchelule Judge
Mongare c/c.
Court:- Ruling in open court.
A.O. MUCHELULE
JUDGE