[2012] KEHC 4364 (KLR)
The High Court found that the lower court exceeded its jurisdiction by setting aside the judgment and declaring the Land Disputes Tribunal decision null and void under section 3A of the Civil Procedure Act and Order XLIV rule 1. The amendment to the application, which introduced new grounds and prayers, was made ex...
Source-derived case information.
- Citation
- [2012] KEHC 4364 (KLR)
- Parties
- Appellant: Lucas M Munga & Another; Respondent: Mwakuni Mwakiti & 3 Others
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 14 of 2002
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed. Orders of the lower court set aside with costs to the appellants.
- Judges
- CW Meoli
- Legal Topics
- Review of Judgment, Jurisdiction of Tribunals, Setting Aside Orders, Land Disputes Tribunal, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucas M Munga & Another
Appellant
Mwakuni Mwakiti & 3 Others
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the lower court had jurisdiction to set aside the judgment and declare the Land Disputes Tribunal decision null and void.
- 2 Whether the appellants were denied a right to be heard when the application was amended ex parte.
- 3 Whether the procedure adopted by the lower court was proper under the Civil Procedure Act and Land Disputes Tribunal Act.
Ratio Decidendi
The High Court found that the lower court exceeded its jurisdiction by setting aside the judgment and declaring the Land Disputes Tribunal decision null and void under section 3A of the Civil Procedure Act and Order XLIV rule 1. The amendment to the application, which introduced new grounds and prayers, was made ex parte and fundamentally altered the nature of the application, thereby denying the appellants their right to be heard. The proper procedure for challenging the jurisdiction of the Land Disputes Tribunal was by way of judicial review or appeal as provided under the Land Disputes Tribunal Act, not by invoking inherent powers under section 3A or the review provisions of the Civil...
Court Disposition
Appeal allowed. Orders of the lower court set aside with costs to the appellants.
Orders
- The orders made on 26/6/02 by the lower court are set aside.
- Costs of the appeal awarded to the appellants.
Full Case Text
Judgment text and source record
26 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT
AT MALINDI
CIVIL APPEAL 14 OF 2002
LUCAS M MUNGA & ANOTHER ………….......………APPELLANT
-VRS-
MWAKUNI MWAKITI & 3 OTHERS....................RESPONDENTS
JUDGEMENT
1. This appeal challenges an order made on 26. 06. 02 (erroneously stated as 23. 08. 01 in the memorandum of appeal) by the Resident Magistrate, Kaloleni in Land Award (Case) No.14/1996.
2. The brief facts of the matter are that the appellants being the successful claimant in Land Case NO.LAND/KAL/14 of 1996 before the Land Disputes Tribunal, moved to obtain judgment against the RespondentS before the Kaloleni Resident Magistrate`s Court, as provided under section 7 of the Land Disputes Tribunal Act (now repealed). That was on 8. 10. 96. Judgement was entered on 8. 10. 96.
3. In November of the same year the Respondents filed an application expressed to be brought under section 3A of the Civil Procedure Act seeking that the Land Disputes Tribunal decision of 8. 10. 96 be declared null and void.
4. The main grounds contained in the supporting affidavit and were accepted by the court were that the Tribunals’ decision was in contravention of a court finding in an earlier related award, namely, Land Award case No.32/1985 Mombasa that a panel of elders had no jurisdiction to entertain the dispute in question. Secondly, it was alleged that some parties to the dispute were dead as at 8. 10. 96 Counsel for the Respondents argued the application exparte on 7. 6.02 as the appellants were absent. He orally applied to amend the application to include OXLIV r 1 Civil Procedure Act and new prayer that the judgement entered on 8. 10. 06 be reviewed.
5. In his ruling delivered on 26/6/02 the learned District Magistrate concluded;-
“From the proceedings therefore, I agree that the proceedings which were before the land dispute tribunal be rendered null and void and that this court exercising its powers under section 3A Civil Procedure Act and under OXLIV r 1(Civil Procedure Rule) that the judgement entered and all proceedings in this suit is hereby ordered set aside and costs be paid to the defendant counsel(sic)”.
6. The decision of the Lower court went beyond reviewing the judgement, it set it aside. The amendment inserted at the hearing of the application completely changed the tenor of the same and should have been served on the adverse party. The appellants` chief complaint in this appeal is that they were denied a hearing. It is valid.
7. In addition to setting aside the judgement adopting the elders’ decision, the court declared the said decision null and void. The Respondents’ counsel has supported this view. He submitted that the lower court`s decision was made to “correct an anomaly” and that the jurisdiction is drawn from the preamble of the Land Disputes Tribunal Act.
8. That argument is not tenable, with respect. The Land Disputes Tribunal Act provided in sections 8 and 9 a system of appeals from the elders’ panel to the Appeals Committee and the High Court. Alternatively where the question of the jurisdiction of the elders’ tribunal required to be determined, the proper procedure would be a challenge by way of judicial review.
9. In the circumstances of this case the learned District Magistrate was not empowered under section 3A of the Civil Procedure Act or OXLIV rule 1 Civil Procedure Rule on which he relied, or even under the Land Disputes Tribunal Act, to order as he did. This fact alone is sufficient to dispose of this appeal. The orders made on 26/6/02 cannot be allowed to stand. The same are hereby set aside, with costs to the appellants.
Delivered and signed at Malindi this11th May, 2012in the presence Mr Mr Mkan for the Respondent, Mr Kilonzo for the appellant.
C. W. MEOLI
JUDGE