[2012] KEHC 193 (KLR)
The court found that both the Kabras Land Disputes Tribunal and the Western Provincial Appeals Committee were not properly constituted as required by the Land Disputes Tribunals Act. The Kabras Tribunal had six members instead of the statutory requirement of either three or five (Chairman and two or four elders),...
Source-derived case information.
- Citation
- [2012] KEHC 193 (KLR)
- Parties
- Appellant: Joel Lucheli; Respondent: Lusenaka Yuka
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 54 of 2009
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- BT Jaden
- Legal Topics
- Jurisdiction of Tribunals, Composition of Tribunals, Statutory Time Bar, Cause of Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joel Lucheli
Appellant
Lusenaka Yuka
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Kabras Land Disputes Tribunal and the Western Provincial Appeals Committee had jurisdiction to entertain the dispute.
- 2 Whether the respondent’s claim was statutory time barred.
- 3 Whether the proceedings and decision of the Kabras Land Disputes Tribunal complied with the Land Disputes Tribunal Act No. 18 of 1990.
Ratio Decidendi
The court found that both the Kabras Land Disputes Tribunal and the Western Provincial Appeals Committee were not properly constituted as required by the Land Disputes Tribunals Act. The Kabras Tribunal had six members instead of the statutory requirement of either three or five (Chairman and two or four elders), and the Appeals Committee had five members instead of the required three. This procedural irregularity rendered the proceedings and decisions of both tribunals null and void ab initio. Consequently, the appeal was allowed and the decisions of the lower tribunals were set aside.
Court Disposition
appeal allowed
Orders
- The appeal is allowed as prayed.
- Each party to bear own costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
Civil Appeal 54 of 2009 [if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif";} </style> <![endif]
(An Appeal from the decision of the Western Provincial Appeals Committee in
Appeal No. 27 of 2006 arising from Kabras Land Disputes Tribunal
Case No. 4 of 2005 delivered 25. 5.2009)
JOEL LUCHELI …………………………….……........................... APPELLANT
VERSUS
LUSENAKA YUKA ……………....…………..…........................ RESPONDENT
JUDGMENT
The respondent herein, LUSENAKA YUKA had filed a claim against the appellant JOEL LUCHELIbefore the Kabras Division Land Disputes Tribunal,.
The said Tribunal which was comprised of six members “marked the correct boundary” between the two parties.
The appellant was dissatisfied with the said decision and appealed to the Provincial Land Disputes Appeals Tribunal. The Provincial Appeals Committee which was comprised of five members confirmed the decision of the Kabras Land Disputes Tribunal.
The appellant was aggrieved by the said decision and appealed to this court on the following grounds:-
“1. That the Committee erred in law in failing to find that the Kabras Land Disputes Tribunal and the Western Provincial Appeals Committee lacked jurisdiction to entertain the dispute.
2. That the Committee erred in aw in failing to find that the Respondent’s claim was statutory time barred.
3. That the proceedings and decision of the Kabras Land Disputes Tribunal failed to comply with the provisions of the Land Dispute Tribunal Act No. 18 of 1990”.
4. That the Appeals Committee erred in law in failing to find that the respondent had no cause of action as against the appellant.”
The firm of Gabriel Fwaya Advocates appeared for the appellant while the firm of Momanyi Advocates appeared for the respondent. The counsels submitted their written submissions which this court has duly considered.
The Kabras Land Disputes Tribunal was comprised of six members. The said Tribunal was not properly constituted as it violated Section 4 (b) of the Land Disputes Tribunals Act which provides that the tribunal shall consist of the Chairman and either two or four elders.
The Provincial Appeals Land Disputes Tribunal comprised of five members. This violated Section 8 (5) of the Land Disputes Tribunals Act which provides as follows:-
“The appeal shall then be determined by the Appeals Committee, which shall consist of three members appointed under section 9. ”
Section 9 (2) provides:-
“For the purpose of hearing appeals from Tribunals in the Province for which the Committee is constituted the Committee shall sit in a panel of three members and in such places as may be determined by the Provincial Commissioner.”
The Tribunals were improperly constituted. The Tribunal’s decision was therefore null and void ab initio.
This disposes of the appeal herein. The appeal is allowed as prayed. Each party to bear own costs.
Delivered, dated and signed at Kakamega this 18th day of December, 2012.
B. THURANIRA JADEN
JUDGE