[2010] KEHC 29 (KLR)
The court found that the North Kinangop Land Dispute Tribunal acted without jurisdiction by entertaining and determining a dispute concerning ownership of land that was the subject of a pending succession cause in the High Court. Section 6 of the Civil Procedure Act prohibits the hearing of matters that are already...
Source-derived case information.
- Citation
- [2010] KEHC 29 (KLR)
- Parties
- Applicant: Patrick Njuguna Wachira; Respondent: North Kinangop Land Dispute Tribunal; Respondent: The Principal Magistrate, Nyahururu; Respondent: The Land Registrar, Nyandarua District; Interested Party: Ziphorah Wanjiru Maina
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 61 of 2009
- Procedural Posture
- Judicial Review / Ruling
- Outcome
- application allowed
- Judges
- SP Ouko
- Legal Topics
- Jurisdiction of Tribunals, Land Title Disputes, Probate and Succession, Certiorari, Prohibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Njuguna Wachira
Applicant
North Kinangop Land Dispute Tribunal
Respondent
The Principal Magistrate, Nyahururu
Respondent
The Land Registrar, Nyandarua District
Respondent
Ziphorah Wanjiru Maina
Interested Party
Procedural Posture
Judicial Review / Ruling
Legal Issues
- 1 Whether the North Kinangop Land Dispute Tribunal had jurisdiction to determine ownership of the suit land when a succession cause was pending in the High Court.
- 2 Whether the Tribunal's decision and subsequent court decree were nullities for want of jurisdiction.
- 3 Whether orders of certiorari and prohibition should issue to quash the Tribunal's decision and restrain further action based on it.
Ratio Decidendi
The court found that the North Kinangop Land Dispute Tribunal acted without jurisdiction by entertaining and determining a dispute concerning ownership of land that was the subject of a pending succession cause in the High Court. Section 6 of the Civil Procedure Act prohibits the hearing of matters that are already sub judice, and section 3(1) of the Land Disputes Tribunals Act restricts the Tribunal's jurisdiction to specific land disputes, excluding ownership and probate issues. As a result, the Tribunal's decision, the judgment, and the decree of the Principal Magistrate's Court based on that decision were nullities. The court therefore issued orders of certiorari to quash the impugned...
Court Disposition
application allowed
Orders
- The decision of the North Kinangop Land Dispute Tribunal made on 29th May, 2007 is quashed by an order of certiorari.
- The judgment and decree of the Principal Magistrate's Court, Nyahururu entered on 23rd December, 2008 are quashed by an order of certiorari.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
JUDICIAL REVIEW CASE NO.61 OF 2009
PATRICK NJUGUNA WACHIRA……........…...………APPLICANT
VERSUS
NORTH KINANGOP LAND
DISPUTE TRIBUNAL……………...........…..…….1ST RESPONDENT
THE PRINCIPAL MAGISTRATE,
NYAHURURU………..…………....2ND RESPONDENT
THE LAND REGISTRAR,
NYANDARUA DISTRICT………...................………..3RD RESPONDENT
EXPARTE
ZIPHORAH WANJIRU MAINA….......................…INTERESTED PARTY
RULING
Pursuant to leave granted on 5th June, 2009, the applicant has instituted these judicial review proceedings for the quashing by certiorari the decision of the 1st respondent, North Kinangop Land Dispute Tribunal made on 29th May, 2007 as well as the judgment and the decree of the Principal Magistrate’s court entered on 23rd December, 2008. The applicant further seeks that the 2nd respondent, the Principal Magistrate’s court, Nyahururu be prohibited by an order of prohibition from executing the judgment; that the 3rd respondent, the Land Registrar, Nyandarua District be similarly prohibited from registering any conveyance affecting title to parcel of land known as NYA/KITITI 2257 resulting from the decree in P.M. Land Dispute No.22 of 2008.
The motion and the hearing notice were duly served on the respondents and the interested parties who did not respond or attend during the hearing. The applicant contends that the Tribunal did not have jurisdiction to entertain the dispute; that its decision was in excess of its jurisdiction.
In its decision the Tribunal found and directed that:
i)the suit land was transferred to the interested party’s husband, Paul Maina Wachira who died before it was transferred to him
ii)the interested party and her five daughters to file a succession cause to claim the suit land
iii)the applicant and his co-claimant in the tribunal, Gladys Wangari Wachira to stop interfering with the interested party’s interest on the suit land
iv)the applicant and Gladys Wangari Wachira to withdraw restrictions on the suit land
v)the Land Registrar, Nyandarua District to issue title deed to the interested party in accordance with Certificate of Confirmation issued in Succession Cause No.772 of 2007
vi)the Executive Officer, Principal Magistrate’s Court to sign necessary documents to facilitate the transaction
I need to point out only two matters. First, as the Tribunal heard the dispute, it was aware of the existence of High Court Succession Cause Nairobi No.772 of 2007. It has been submitted by counsel for the applicant that this cause is pending determination and involves the suit land which is registered in the name of the applicant’s deceased father. By dint of section 6 of the Civil Procedure Act, the Tribunal was prohibited from entertaining the dispute when the same issue was the subject in the succession cause. Secondly, section 3(1) of the Land Disputes Tribunals Act only empowers the Tribunal to hear disputes relating to:
(i)trespass to the land
(ii)determination of boundaries, and
(iii)claim to work land
The Tribunal dealt with the issue of ownership based on probate matters and therefore clearly had no jurisdiction. The entry of judgment and issuance of a decree based on that decision was a nullity as a result.
The decision of the tribunal, the judgment and decree of the court below are hereby quashed by an order of certiorari. Similarly the Land Registrar, Nyandarua District is prohibited from acting on a decree issued in a flawed process.
In a nutshell, this application is allowed with costs.
Dated, Signed and Delivered at Nakuru this 30th day of July, 2010.
W. OUKO
JUDGE