[2015] KEHC 6645 (KLR)
The court found that the decision of the Kwanza Land Disputes Tribunal was neither signed nor dated by the tribunal members as required by Section 3(8) of the Land Disputes Tribunal Act. This statutory requirement is mandatory, and non-compliance is a fatal defect that renders the tribunal's decision a nullity ab...
Source-derived case information.
- Citation
- [2015] KEHC 6645 (KLR)
- Parties
- Applicant: Kipsoimo Kitur; Applicant: Kipketer Murwon; Applicant: Paul Sawe Kogo; Respondent: Kwanza Land Disputes Tribunal; Interested Party: Erastus Samoei & 8 Others
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 22 of 1997
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Certiorari
- Outcome
- Application allowed. Tribunal decision and its adoption as judgment of the court quashed.
- Judges
- EO Obaga
- Legal Topics
- Judicial Review, Land Disputes Tribunal Procedure, Certiorari, Tribunal Decision Validity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipsoimo Kitur
Applicant
Kipketer Murwon
Applicant
Paul Sawe Kogo
Applicant
Kwanza Land Disputes Tribunal
Respondent
Erastus Samoei & 8 Others
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Certiorari
Legal Issues
- 1 Whether the decision of the Kwanza Land Disputes Tribunal was valid in the absence of signatures and date as required by law.
- 2 Whether the ex-parte applicants had standing to challenge the tribunal decision.
- 3 Whether the tribunal members were properly gazetted.
Ratio Decidendi
The court found that the decision of the Kwanza Land Disputes Tribunal was neither signed nor dated by the tribunal members as required by Section 3(8) of the Land Disputes Tribunal Act. This statutory requirement is mandatory, and non-compliance is a fatal defect that renders the tribunal's decision a nullity ab initio. The court rejected the applicants' argument regarding non-gazettement of members, finding that all members were properly gazetted and that any discrepancy in names was not substantiated. The court also found that the applicants had standing and had filed the judicial review application within the prescribed time. Consequently, the tribunal's decision and its adoption as a...
Court Disposition
Application allowed. Tribunal decision and its adoption as judgment of the court quashed.
Orders
- The decision of the Kwanza Land Disputes Tribunal and its adoption as a judgment of the court are removed into this court and quashed.
- The ex-parte applicants shall have costs of this application.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
MISC. CIVIL APPLICATION NO. 22 OF 1997
(ELD. H. C. MISC. CIVIL APPLICATION NO. 146 OF 1997
1. KIPSOIMO KITUR )
2. KIPKETER MURWON )
3. PAUL SAWE KOGO )::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS
AND
KWANZA LAND DISPUTES TRIBUNAL :::::::::::::::::::: RESPONDENT
AND
ERASTUS SAMOEI & 8 OTHERS ::::::::::::::::: INTERESTED PARTY
R U L I N G
1. The ex-parte applicants brought a notice of motion dated 11/7/1997 seeking an order of certiorari bringing into this court the decision of Kwanza Land Disputes Tribunal which was subsequently adopted as a judgement of the court on 18/4/1997 for purpose of quashing the same.
2. The ex-parte applicants contend that the decision of the Tribunal was not signed and that they did not participate in the same. They also contend that some of the members who participated in the proceedings were not gazetted as required.
3. The interested parties have opposed the ex-parte applicant's application on the ground that the applicants are the ones who filed proceedings in the Tribunal and that they are only disowning the verdict because it was not favourable to them.
4. I have gone through the ex-parte applicants motion as well as the opposition to the same by the interested parties. The decision being complained of was reached pursuant to the provisions of the Land Disputes Tribunal's Act which has since been repealed. The ex-parte applicants contention that they did not file any claim before the Kwanza Land Disputes Tribunal has no basis.The chairman of the defunct tribunal swore an affidavit and admitted that there was such a claim before the tribunal. When the verdict of the tribunal was brought to court for purposes of adoption the record shows that the ex-parte applicants were present. They indeed went a head to instruct their advocate who filed these proceedings. There is therefore no ground upon which they can claim that they did not file the proceedings before the Tribunal.
5. Section 3 (8) of the Land Disputes Tribunal Act (Now repealed) provided as follows;-
3(8)”The Tribunal shall give reasons for its decision, which shall contain a summary of the issues and the determination thereof, and which shall be dated and signed by each member of the Tribunal.”
A look at the ruling of the Tribunal shows that it was neither dated nor signed by the members as provided for under the above quoted section. The section is couched in mandatory terms and failure of the members to date and sign it is a fatal mistake which cannot be excused.
6. The ex-parte applicants argue that some members of the Tribunal were not gazetted. I have looked at the Gazette Notice of 4/2/1994. The names of all the four members appear on the Gazette Notice. The only difference is the names of one of the members who in the proceedings is shown as Jolly J. M. Wekhui whereas in the Gazette notice, his name is shown as John Wekhui. It was upon the ex-parte applicants to show that the names do not refer to one and the same person. There is therefore no merit in this argument.
7. The advocate for the interested parties argued that if the ex-parte applicants were aggrieved with the verdict of the tribunal, they should have moved against it in the manner provided and within the time allowed. The ex-parte applicants opted to pursue the Judicial review way. The applicants obtained leave to file for Judicial review within the six months required under order 53 of the Civil Procedure Rules. The main motion was filed within the time given by the court. I therefore do not find any merit in the argument.
8. As the Tribunal Judgement was not dated or signed as required, I find that the same was a nullity ab initio. The same as well as the decision of the court adopting it as a judgement of the court ar hereby removed into this court and accordingly quashed. The ex- parte applicants shall have costs of this application.
It is so ordered.
Dated, signed and delivered at Kitale on this 19th day of February, 2015.
E. OBAGA
JUDGE
In the presence of ex-parte applicants and interested parties. Court Clerk – Kassachoon.
E. OBAGA
JUDGE
19/2/2015