[2012] KEHC 795 (KLR)

REPUBLIC OF KENYA

High Court at Kericho

Miscellaneous Application 24 of 2010 [if gte mso 9]><xml>

800x600

</xml><![endif][if gte mso 9]><xml>

Normal 0

false false false

EN-GB X-NONE X-NONE

MicrosoftInternetExplorer4

</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]

KIKWAI A. MAGERER...................................................................................APPLICANT

VERSUS

CHAIRMAN BOMET LDT...................................................................1ST RESPONDENT

THE PRINCIPAL MAGISTRATE COURT KERICHO.......................2ND RESPONDENT

SAWE A. MAGERER..........................................................................3RD RESPONDENT

RULING

KIKWAI A. MAGERERan ex parte applicant seeks an order of certiorari removing into this court and quashing the decision of Bomet Land disputes tribunal’s award which was read and adopted by the Kericho Principal Magistrate hence forming Judgment of the court in Miscellaneous Civil Application No. 15 of 2010.

The Background of the matter is that one Sawe A. Magerer, the 3rd Respondent in the matter filed a claim against the Ex parte Applicant before the Bomet Land Disputes Tribunal (Bomet Land Disputes Tribunal Claim No. 16/7/VIIL/87 of 2010). Despite the fact that the Ex parte Applicant is the registered proprietor of L.R. Kericho/ Kongotik/702, the tribunal made a finding that the land belonged to the 3rd Respondent. The award by the tribunal dated 12th April 2010 was subsequently read and adopted as judgment of the court by the Principal Magistrate Kericho.

He averred in his affidavit that the tribunal had no jurisdiction to arbitrate on matters of title to land as well as contract the 1st and 2nd Respondents failed and or neglected to reply to the application.

A reply thereto was filed by the 3rd Respondent.

It was his averment that he purchased land parcel – Kericho/Kongotik/702 in 1956 from one Kiprotich Arap Mwangoris and mandated his brother, the applicant to reside thereon. While away at his place of duty this applicant registered himself as the owner of land in the course of adjudication. He averred that the tribunal was seized of jurisdiction to deal with the dispute and urged the court to dismiss the application.

The 3rd Respondent though duly notified of the hearing date of the application did not turn up.

I have duly considered the application, submissions thereto and the replying affidavit. In making the award, the subject matter of this application, the Tribunal which is a public body handled a matter in respect of Kericho/Kongotik/702.

Section 3of the Land Disputes Tribunal (Act No. 3 of 1990) spells out the jurisdiction of the tribunal.

It stipulates as follows:-

“Subject to this Act, all cases of a civil nature involving a dispute to –

(a) the division of, or the determination of boundaries to land, in dividing land held in common;

(b) a claim to occupy or work land; or

(c) trespass to land;

shall be determined by a Tribunal established under Section 4”.

Section 4established the tribunal that heard the matter.

The land in issue is registered under the now repealed Registered Land Act (Cap 300).

The matter in issue was title to land. The Land Disputes Tribunal had no jurisdiction to deal with matters of title to land. The decision of the Land Disputes Tribunal was beyond the powers donated to it by statute.

In the circumstances it was null and void. The Magistrate’s court adopted the award on being filed pursuant to Rule 20 of the Land Disputes Tribunal (Forms and Procedure) Rules 1993. The said adoption does not however legalise what was illegal.

This makes the judgment a nullity as well. In the premises the ex-parte applicant is entitled to the orders sought.

Accordingly, I do grant the ex parte applicant, an order of certiorari to remove into this court and quash the decision of the Bomet Land Disputes Tribunal dated 12th April, 2010 together with the entire proceedings arising therefrom, that was adopted as judgment of the court in Kericho Principal Magistrate Misc. Civil Application No. 15 of 2010.

Costs of the application shall be borne by the 2nd Respondent.

It is so ordered.

DATEDat KERICHO this 28TH day of November 2012.

............................

LILIAN N. MUTENDE

JUDGE

COUNSEL APPEARING

Mr. Orina, for the Ex parte Applicant

No Appearance for the 1st and 2nd Respondents

Mr. R. Koech- court clerk