[2010] KEHC 1895 (KLR)
The court found that the Embu West District Land Tribunal acted in excess of its jurisdiction by purporting to order the Land Registrar to remove a caution on land registered in the name of a deceased person, especially where the legal representative or administrator of the estate was not a party to the proceedings....
Source-derived case information.
- Citation
- [2010] KEHC 1895 (KLR)
- Parties
- Applicant: Peterson Kamau Muto; Applicant: Erasmus Njeru Muto; Respondent: Embu West District Tribunal
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 50 of 2009
- Procedural Posture
- Judicial Review / Ruling
- Outcome
- Application allowed. Tribunal award quashed.
- Legal Topics
- Land Disputes Tribunal Jurisdiction, Removal of Caution, Powers of Land Registrar, Procedure for Quashing Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peterson Kamau Muto
Applicant
Erasmus Njeru Muto
Applicant
Embu West District Tribunal
Respondent
Procedural Posture
Judicial Review / Ruling
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to order removal of a caution on land registered in the name of a deceased person.
- 2 Whether the Tribunal could direct the Land Registrar to remove a caution, or if such power is reserved for the Registrar or a court of competent jurisdiction.
Ratio Decidendi
The court found that the Embu West District Land Tribunal acted in excess of its jurisdiction by purporting to order the Land Registrar to remove a caution on land registered in the name of a deceased person, especially where the legal representative or administrator of the estate was not a party to the proceedings. The Tribunal's powers under section 3(1) of the Land Disputes Tribunal Act do not extend to directing the Land Registrar in the performance of statutory duties or adjudicating disputes involving the estate of a deceased person without proper parties. Consequently, the Tribunal's award was illegal and irregular, warranting its quashing by the High Court.
Court Disposition
Application allowed. Tribunal award quashed.
Orders
- The award of the Embu West Land Tribunal is removed into the High Court and quashed.
- Each party will bear his own costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Judicial Review 50 of 2009
PETERSON KAMAU MUTO………………………….1ST APPLICANT
ERASMUS NJERU MUTO……………………………2ND APPLICANT
VERSUS
EMBU WEST DISTRICT TRIBUNAL………………RESPONDENT
R U L I N G
Erasmus Njiru Muto who is named as the interested party in this matter was the claimant in Embu West District Land Tribunal Case No. 53/2008. The ex-parte Applicant herein was the Defendant in the Tribunal Case.His prayer to the Tribunal was for the removal of the caution lodged against Land Parcel No.KYENI/KIGUMO/1829. The Tribunal went ahead and heard the dispute and made a finding that the land in question belonged to the Respondent and ‘ordered’ the Land Registrar Embu West to remove the caution in question.
The ex-parte Applicant moved this court vide the notice of motion dated 8. 03. 2010 to have the said orders quashed.
His application is basically premised on 2 grounds:- That the Tribunal had no jurisdiction to deal with the land belonging to a deceased person and secondly that the Tribunal has no jurisdiction to order the Land Registrar to remove a caution as that is the preserve of the court or the Land Registrar himself/herself.I have given careful consideration to the said grounds and the statement of facts and the rival affidavits.
Firstly as I told the Respondent in court his replying affidavit was defective as it was not signed.It therefore offended the provisions of the Oaths and Statutory declarations Act (Cap 15 of the laws of Kenya).The same ideally should have been struck out but since the respondent is a layman, I decided in the interest of justice the expeditious resolution of this matter not to strike it out.I will therefore determine this motion on its merit.I have studied the said affidavit. It is true that the Respondent bought some land from the deceased registered owner.That is nonetheless not the issue here.The issue at hand is whether the Tribunal had jurisdiction to hear and determine a claim of removal of a caution on the land in question.I must agree with counsel for the ex-parte Applicant that the Tribunal did not have such jurisdiction.
The Tribunal cannot order the Registrar of Lands to perform any of the duties vested in him by law.It could not therefore purport to order or direct the land Registrar Embu West to vacate the caution.That can only be done by the Registrar on his own motion or on orders from a court of competent jurisdiction.
The Tribunal could not deal with land belonging to a deceased person while his legal representative or administrator of his estate was not party to the said proceedings.The award of the Embu West Land Tribunal was therefore illegal and irregular.It was made in excess of the jurisdiction of the Tribunal as clearly stipulated in section 3(1) of the Land Disputes Tribunal Act No. 18 of 1990. The Application therefore has merit.The same is allowed.The impugned award is removed into this court and the same is hereby quashed.
Each party will bear his own costs.
W. KARANJA
JUDGE
Delivered, dated and signed at Embu this 19th day of July 2010.
In presence of:- Mr. Kathungu for ex-parte Applicant and both parties.