[2017] KEELC 3516 (KLR)
The court found that the Machakos District Land Disputes Tribunal acted without jurisdiction when it purported to determine the ownership of parcel number 371, as this issue had already been conclusively determined by the Minister under the Land Adjudication Act, and there was no appeal against the Minister's...
Source-derived case information.
- Citation
- [2017] KEELC 3516 (KLR)
- Parties
- Applicant: Paul Ndambuki Mulinge; Respondent: The Chair Machakos District Land Tribunal; Respondent: The Chief Magistrate Machakos Law Court; Interested Party: Daniel Mutinda Mulu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 23 of 2008
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Notice of Motion allowed in terms of prayer (c); order of prohibition granted; costs to the interested party.
- Judges
- OA Angote
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Land Ownership Disputes, Certiorari and Prohibition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Ndambuki Mulinge
Applicant
The Chair Machakos District Land Tribunal
Respondent
The Chief Magistrate Machakos Law Court
Respondent
Daniel Mutinda Mulu
Interested Party
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Machakos District Land Disputes Tribunal had jurisdiction to determine ownership of land with a registered title.
- 2 Whether the Tribunal's award could be implemented after the Minister's prior decision on the same land.
- 3 Whether the application for certiorari was time-barred under the six-month rule.
Ratio Decidendi
The court found that the Machakos District Land Disputes Tribunal acted without jurisdiction when it purported to determine the ownership of parcel number 371, as this issue had already been conclusively determined by the Minister under the Land Adjudication Act, and there was no appeal against the Minister's decision. The Tribunal's award was therefore null and void. However, since the application for certiorari was filed outside the statutory six-month period, that remedy was unavailable. The court nonetheless granted an order of prohibition to prevent the implementation of the Tribunal's void award, thereby protecting the applicant's rights as previously determined by the Minister.
Court Disposition
Notice of Motion allowed in terms of prayer (c); order of prohibition granted; costs to the interested party.
Orders
- An order of prohibition is issued prohibiting the implementation of the Machakos District Land Disputes Tribunal award in Case No. 51 of 2004 as adopted by the Chief Magistrate Machakos Law Courts on 30th November, 2007.
- The Interested Party shall pay the costs of the suit.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
MISC. APPLICATION NO. 23 OF 2008
IN THE MATTER OF AN APPLICATION BY PAUL NDAMBUKI MULINGE TO APPLY FOR AN ORDER OF PROHIBITION
PAUL NDAMBUKI MULINGE……EX-PARTE
AGAINST
THE CHAIR MACHAKOS DISTRICT LAND TRIBUNAL …......1ST RESPONDENT
THE CHIEF MAGISTRATEMACHAKOS LAW COURT……..2ND RESPONDENT
AND
DANIEL MUTINDA MULU ………….........................………INTERESTED PARTY
JUDGMENT
1. In the Notice of Motion dated 5th March, 2008, the Ex-parte Applicant is seeking for the following orders:
a. That an order of certiorari do issue removing into the High Court for purposes of quashing and setting aside the judgment adopted by the Chief Magistrate’s Court at Machakos on 30th November, 2007 in Miscellaneous Application No. 107 of 2006.
b. That an order of prohibition do issue to the Respondents and Interested Party prohibiting them from implementing the said award of the Machakos District Land Disputes Tribunal in Case No. 51 of 2004 which was read and adopted as Judgment by the Chief Magistrate Machakos Law Courts on 30th November, 2007 in Miscellaneous Application No. 107 of 2006.
c. That the leave granted to apply the above orders of certiorari and prohibition do operate as stay of execution of the judgment adopted by the Machakos Chief Magistrate’s Court on 30th November, 2007 in Miscellaneous Application No. 107 of 2006 pending the hearing and determination of the substantive Application(spent).
2. According to the Statement of the Applicant, he is the registered proprietor of parcel of land known as Kibauni/Kitile/371; that the Interested Party never challenged the decision of the Minister in Case No. KTL/2/75 and that the Tribunal’s proceedings and findings in Case No. 51 of 2004 is a nullity in law for want of jurisdiction.
3. In the Affidavit, the Applicant deponed that all along, he was not aware of the award of 17th May, 2006 until on 30th November, 2007 when the decision was adopted by the Magistrate’s Court.
4. Although the Respondent’s and the Interested Party were served with the Notice of Motion, they did not file a response.
5. The Ex-parte Applicant’s advocate submitted that the Tribunal did not have jurisdiction to deal with the issue of ownership of land; that the suit property has a Title Deed and that the subject matter that was before the Tribunal had been litigated before the Minister.
6. According to the Award of the Machakos Disputes Land Tribunal of 17th May, 2006, parcel of land number 371 should be divided between the Applicant and the Interested Party.
7. The evidence on record shows that before the Tribunal delved into the issue of ownership of parcel number 371, the same issue had been raised before the Lands Committee, the Land Arbitration Board and the Minister pursuant to the provisions of the Land Adjudication Act.
8. According to the decision of the Minister that was made on 29th May, 1986, it is the Ex-parte Applicant who was entitled to the suit property.
9. Considering that there was no appeal against the decision of the Minster, it was not open for the Tribunal to delve into the issue of ownership of the suit property, the issue of ownership having been dealt with by the Minister. The Tribunal therefore acted without jurisdiction and its decision is null and void.
10. Considering that the Application for leave to commence these proceedings was filed after the expiry of six (6) months from the date when the Tribunal made the award, the order of certiorari cannot issue.
11. However, the order of prohibition to prohibit the implementation of the impugned Award should issue.
12. For those reasons, I allow the Notice of Motion dated 5th March, 2008 in terms of prayer number (c). The Interested Party shall pay the costs of the suit.
DATED AND DELIVERED AT MACHAKOS THIS 3RDDAY OF MARCH, 2017.
OSCAR A. ANGOTE
JUDGE