[2014] KEHC 6658 (KLR)

COPY

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISC. CIVIL APPLICATION NO. 56 OF 2012

IN THE MATTER OF AN APPLICATION BY DIANAH MUTHONI MUTURI FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITION.

AND

IN THE MATTER OF:

1. MSAMBWENI LAND DISPUTES TRIBUNAL

2. THE SENIOR RESIDENT MAGISTRATE KWALE ......................... RESPONDENTS

AND

BAKARI ALI MWAKUMANYA .............................................................INTERESTED PARTY

EX-PARTE: DIANA MUTHONI MUTURI

RULING

[1] The applicant in this case brought a Notice of Motion dated 2nd July, 2012 praying for the following orders;

1. That an Order of certiorari do issue to remove and bring to the court for purposes of being quashed the proceedings and judgment entered by the Senior Resident Magistrate Kwale on the 6th June 2012 in accordance with the purported judgment or award of the Msambweni Land Dispute Tribunal Case dated 8th November 2011.

2. That an order of prohibition do issue Prohibiting the SeniorResidentMagistrate Kwale from executing the decree given on 6th June 2012 concerning the Plot/Parcel of land known as KWALE/DIANI/1136.

[2] The applicant argued that the Msabweni Land Disputes Tribunal ceased in law to exist on 30th August, 2011 the commencement date of the Environment and Land Court Act of 2011 which repealed the Lands Disputes Tribunal Act of 1990. That consequently the purported judgment of the Msabweni Disputes Tribunal dated 8th November is a nullity and finally that the Resident Magistrate Kwale had no jurisdiction to adopt the judgment or award of the Msabweni Disputes Tribunal and that therefore the proceedings of 6th June are a nullity, the tribunal donating jurisdiction having been repealed as stated earlier.

[3] In his written submissions, the applicant stated that she is the registered proprietor of Kwale/Diani/136 having been so registered on 26th February, 1993. She annexed a copy of her certificate of title. She averred that the respondent lodged his claim for ownership of the suit land premises vide Dispute no. 19 of 2011 through Msabweni Land Disputes Tribunal, a tribunal established under the Land Disputes Tribunal Act of 1990. The tribunal awarded the land to the respondent and went ahead to order the Land Registrar Kwale to cancel the registration of the suit land in the name of the applicant and ordered the same to be registered in the name of the interested party.

[4] The applicant avers that the Msabweni Land Disputes Tribunal lacked jurisdiction not do so. The applicant further argued that the claim for the respondent was filed after some 8 years and that the claim was clearly barred by limitation. The applicant annexed various authorities to support his claim.

[5] The interested party on its part filed its submissions and argued inte alia, that the law does not act retrospectively and that since the case had been filed in the Msabweni Land Disputes Tribunal prior to the coming into effect of the Environment and Land Court Act 19 of 2011, the Resident Magistrate Kwale had jurisdiction to entertain the same. He stated that he has been in the land since he was born in 1946. That he has a dwelling house and that his family lives therein. He claimed he has planted an array of crops and various fruit trees. He averred that he was alloted the piece of land but the area Chief failed to avail the allotment letter to him. That he received summons from the Chief's office over a complaint, that he is occupying the land belonging to the applicant and that is when he filed the dispute at Msabweni Land Disputes Tribunal. He averred that the land was properly alloted to him.

[6] There is no dispute that this land was registered land under Cap. 300 (now repealed). That the land was registered in the name of the applicant on 26th February 1993.

[7] The issue for determination is whether the Msabweni Land Disputes Tribunal had jurisdiction to determine title to land and to order cancellation of the applicant's title to the suit land and issue it to the interested party and finally whether the dispute to the Msabweni Land Disputes Tribunal was time barred by limitation.

The jurisdiction of the Land Disputes Tribunal was provided under Section 3 of the Land Disputes Tribunal Act No. 18 of 1990 which provides as follows.

"3. (1) Subject to this Act, all cases of a civil nature involving a dispute as to-

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

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

(c) trespass to landshall be heard and determined by a Tribunal established under section 4. "

[8] There is no doubt that the Msabweni Land Disputes Tribunal dealt with title to land when they ordered the registration of the applicant claim as the registered owner to be cancelled and such registration be replaced with the interested parties name.

Under Sec.3 of the act they had no jurisdiction to do so. The High Court in the case of Jidraph Nyoro Kangethe -vs Silas Kangetheheld that;

"The jurisdiction of the Tribunal to deal with land registered under the Registered Land Act (Cap.300) is found in section 159 of that Act. That jurisdiction is limited by Section 3(1) of LDT act No. 18 of 1990 which provides for cased which may be heard and determined by the tribunal.

These are case of a civil nature involving a dispute as to:

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

(b) A claim to occupy or work on land; or

(c) Trespass to land."

These are the only matters which the Tribunal has power to deal with.Act No. 18 of 1990 does not confer upon the Tribunal to interfere with the interest of a registered proprietor whose title is protected by Section 27 and 28 of Cap. 300.

In Republic vs. Olololunga Land Disputes Tribunal ex part Isaiah Kiplangat Cheluget (Nairobi H.C. MISC. Case No. 926 OF 1999) Aganyanya J. faced with a similar situation stated:-

"Yet under the Land Disputes Act - No. 1 of 1990 the functions of the Tribunal are limited to the division of, or the determination of boundaries to land including land held in common, a claim to occupy or work on land or trespass to land. (See Section 3 of the Act ... (w)hat the Tribunal in the case subject to this application engaged itself in, would end up with the rectification of the Registrar but in the circumstances prevailing herein,this would go against the spirit of Section 143 (1) of the registered Land Act - chapter 300 -

... (W)hen the (Land disputes)Act gives member of the Tribunal power to decide on the division or occupation of land it is not saying that the tribunal should encroach on land registered in individual name and begin dividing it for the benefit and occupation of third parties ... (T)the tribunal has no jurisdiction to change the position fo a registered land . . ."

"More recently, in Gibson Senele Mato vs. Eastern Province Land Disputes Committee & other (Nairobi Misc. C.A. 331 of 2003). Ibrahim, J held that the Makueni District Land tribunal Appeal Committee had no jurisdiction not hear and determine question of ownership and title to land registered under the RLA, and that the Committee,in doing so, acted ultra vires the statue and the entire proceedings became a nullity once it pronounced on the question of ownership of title."

The elders have no jurisdiction to determine right to land. In Franca Allers Sogno in Misc. Civil Application No. 181 of 1999, the High Court at Mombasa reiterated the same that elders do not have jurisdiction to deal with title to land.

[9] The interested party filed his case in Msabweni Land Disputes Tribunal on 3rd May, 2011. This was some 18 years 2 1/2 months after the title was issued to Dianah Muthoni Muturi the applicant herein. Her title having been issued on 26th February, 1993. the Limitation period had come into play and it preyed on the rights on any other person claiming title to the suit land. These are issues that the elders had no jurisdiction to deal with. These are issues that ought to have been adjudicated upon by a court of competent jurisdiction if the title to land were to be challenged.

[10] I agree with the submissions by the counsel for the applicant. The application must be allowed. I do allow it as prayed with no order as to costs.

Dated and delivered in open court at Mombasa this 21st day of February, 2014.

S.N. MUKUNYA

JUDGE

21. 2.2014

In the presence of

Mr. Wafula Advocate holding brief for Kamoti Advocate for applicant.

Ms. Munyalla Advocate for the interested party.