[2010] KEHC 2855 (KLR)
The court held that the Mathioya Land Disputes Tribunal acted ultra vires by purporting to determine ownership and order cancellation of title to land registered under the Registered Land Act, as such jurisdiction is exclusively vested in the High Court or, in limited circumstances, the Resident Magistrate's Court....
Source-derived case information.
- Citation
- [2010] KEHC 2855 (KLR)
- Parties
- Applicant: Jeremiah Githinji Mahugu; Respondent: The Chairman Mathioya LDT; Respondent: Elizabeth Waithira Watara
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 189A of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Certiorari
- Outcome
- application allowed; tribunal award and magistrate's order quashed
- Judges
- J Karanja
- Legal Topics
- Jurisdiction of Tribunals, Registered Land Ownership, Certiorari, Ultra Vires Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Githinji Mahugu
Applicant
The Chairman Mathioya LDT
Respondent
Elizabeth Waithira Watara
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Certiorari
Legal Issues
- 1 Whether the Mathioya Land Disputes Tribunal had jurisdiction to determine ownership of registered land under the Registered Land Act.
- 2 Whether the Tribunal's award and the Resident Magistrate's adoption thereof were ultra vires and liable to be quashed by certiorari.
Ratio Decidendi
The court held that the Mathioya Land Disputes Tribunal acted ultra vires by purporting to determine ownership and order cancellation of title to land registered under the Registered Land Act, as such jurisdiction is exclusively vested in the High Court or, in limited circumstances, the Resident Magistrate's Court. The Tribunal's award and the subsequent adoption by the Kangema Resident Magistrate were therefore nullities. The court allowed the application for certiorari, quashing both the Tribunal's award and the Magistrate's order, as the Tribunal lacked jurisdiction ab initio to entertain the dispute.
Court Disposition
application allowed; tribunal award and magistrate's order quashed
Orders
- The award of the Mathioya Land Disputes Tribunal made on 1/11/2005 is quashed.
- The order of the Resident Magistrate's Court at Kangema made on 18/11/2005 adopting the Tribunal's award is quashed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Miscellaneous Application 189A of 2005
JEREMIAH GITHINJI MAHUGU……………………………………APPLICANT
VERSUS
THE CHAIRMAN MATHIOYA LDT…………………………1ST RESPONDENT
ELIZABETH WAITHIRA WATARA………………………..2ND RESPONDENT
R U L I N G
Leave to file this notice of motion was granted by my sister Judge Khaminwa on 2/11/2005. The main application was filed on 19/12/2005. The matter came up for hearing on 10/5/2006 but the same could not proceed as counsel for the ex-parte applicant was said to be unwell. He nonetheless appears to have gone to slumber and a hearing date was taken 3 years later i.e on 12/8/2009 when the matter was scheduled for hearing on 2/11/2009.
The ex-parte applicant seeks an order of certiorari to remove into this court for quashing the award of the Mathioya Land Disputes Tribunal made on 1/11/2005 and the order of the Resident Magistrate’s Court at Kangema made on 18/11/2005 for purposes of quashing the same.
The main ground on which the application is based is that the Tribunal exceeded its jurisdiction and thus acted ultra vires in determining an issue pertaining to the ownership of land which is registered under the Registered Land Act Cap 300 of the Laws of Kenya.
Upon perusal of the statement of facts and the verifying affidavit and the annexture thereto, it is clear that the land in question was registered in the names of Jeremiah Githinji Mahugu as the absolute proprietor. The award in question stated that the land belonged to one Elizabeth Waithira Watara and ordered that the Title Deed to that effect be issued to her.
In effect, the Tribunal divested the registered owner of his proprietory rights under Cap 300 of the Laws of Kenya and directed that his Title Deed be cancelled. Such an order was certainly outside the Tribunal’s mandate as clearly defined under Section 3 (1) of the Land Disputes Tribunal Act. Issues pertaining to ownership of registered land is in the domain of the High Court by dint of Section 159 of the Registered Land Act or the Resident Magistrate where the pecuniary value of the said land allows such. Cancellation of a Title Deed to registered land can also only be dealt with by the High Court pursuant to Section 143 of the Registered Land Act.
In sum, the Tribunal lacked jurisdiction to determine the dispute in question. Their award was therefore null and void for all intents and purposes. The Notice of Motion therefore succeeds. The same is allowed. The said award along with the Judgment of the Kangema Resident Magistrate adopting the same are called into this court and the same are hereby quashed.
Each party will bear its own costs of the notice of motion.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 4th day of March 2010
In presence of:- Mr. Kagwi for ex-parte applicant.