[2004] KEHC 910 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL MISCELLANEOUS APP. 156 OF 2003 NGURE NDITU

MANZI MANGARA ............................................. APPLICANTS

VERSUS

CHAIRMAN LAND DISPUTES TRIBUNAL MWINGI DISTRICT

ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::: RESPONDENT

R U L I N G

The notice of motion dated 2. 12. 2003 was brought pursuant to Order 53 Rule 3 Civil Procedure Rules. The ex parte applicants are Ngure Nditu and Manzi Mangara who pray that this court do bring forth the award of the Land Disputes Tribunal Mwingi District read to the parties on 25. 6.2003 by Senior Resident Magistrate Mwingi, to be quashed by authority of certiorari.

Leave to apply for Judicial Review was granted by this court on 12. 11. 2003. A statement of facts and relevant affidavits were filed along with the chamber summons dated 7. 10. 2003. Notice to the Registrar was filed on 7. 10. 2003. The applicants also annexed the proceedings before the Land Disputes Tribunal and those before Senior Resident Magistrate in CC. 71/2001.

It was set out in the Notice of Motion and the other pleadings and submissions by counsel for the applicant that Mwingi Land District Tribunal acted ultra vires its power when it determined the issue of ownership to land that it breached the rules of natural justice and showed open bias to the applicants.

By a plaint filed in the Land Disputes Tribunal Mwingi Division, the then plaintiff James Mwendaka Kimenge (interested party) sued the two applicants for recovery of land situated at Kahila village in Kataa Location which the interested party alleged the first defendant Ngure Nditu (applicant) secretly sold to the second defendant/applicant without colour of right and without informing the interested party with whom first applicant shared a boundary.

What the court has been called upon to do is to call for the decision of the Land Disputes Tribunal which offends the applicants. The decision of the Senior Resident Magistrate Mwingi cannot be faulted because the magistrate merely performed a statutory duty of making the decision of the Land Disputes Tribunal the judgement of the court. The proceedings of Land Disputes Tribunal annexed to the application do show that the decision of the Land Disputes Tribunal was rendered on 27. 9.2002. The court has no idea whether it was read to the parties on the said date or the decision of the tribunal was made known to the parties when it was made the judgement of the court. Since the Land Disputes Tribunal proceedings do not show the date that the decision was read the court will presume it that the date of the decision as 26. 6.2003 when it was made the judgement of the court.

Counsel for the respondent submitted that this application is time barred because it was made on 27. 9.2002 but as noted above there is no evidence that it was read or made known to the parties on that day.

The application is therefore not time barred as this application was filed on 8. 10. 2003 which was only 4 months after the decision was adopted by court as judgement. The plaint filed before the Land Disputes Tribunal is clear. The plaintiff/interested party was claiming recovery of land. It was the plaintiff/interested party’s evidence of before the tribunal was that the land in dispute was inherited by him from his ancestors, but that the 1st applicant encroached on his land and sold it secretly to the second applicant. The second defendant/applicants case before the Land Disputes Tribunal as I understand it is that he bought the land and at same time the matter ended up in court and the land was given to him by the court.

The members of the tribunal made a finding that the land in dispute belonged to the plaintiff/interested party. At no time did the Land Disputes Tribunal Mwingi ever canvass the issue of boundaries, working of land or trespass as provided under Section 3 of Land Disputes Tribunal which limits the jurisdiction of the tribunal. Issues of ownership of land is not the docket of the Land Disputes Tribunal. By the tribunal going ahead to decide on matters of ownership of land it acted ultra vires its powers which are conferred upon it by Section 3 of Land Disputes Tribunal Act. The said section 3 of the Land Disputes Tribunal Act limits the jurisdiction of the Tribunal to issues regarding trespass to land disputes over boundaries, working of land but not ownership of land. In the statement of facts, it is the applicants contention that Rules of natural justice were breached but there was no evidence in support of the said allegation. It is also alleged in the same statement of facts that the tribunal showed open bias to the applicants but the applicant never addressed the court on that allegation.

It was submitted by the respondents that the application is defective because grounds upon which the application was brought are found both in the body of the Notice of Motion and the statement of facts. Counsel for applicant asked the court to ignore the grounds on the face of the application. It is true that Order 53 does not provide for including the grounds in the body of the application. Order 53 Rule 1 (2) provides that the ground shall be included in the statement of facts. Inclusion of grounds in the application is irregular but since grounds were also included in the statement of facts, the court will merely strike out the grounds on the application and proceed with those in the statement of facts and deem the application proper. That defect would not call for striking out of the whole application.

My understanding of the case before Land Disputes Tribunal is that it concerned ownership of land. Even the court award decreed the land to the interested party. There was no issue of boundary. The whole land was disposed to the interested party. The disposing of the whole of the land to the interested party was outside the Land Disputes Tribunal’s mandate.

Consequently, I hereby grant the orders of certiorari as prayed and the decision of the tribunal is hereby quashed by an order of certiorari.

Dated at Machakos this 4th day of November 2004

R. V. WENDOH

JUDGE