[2013] KEHC 2498 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC. CIVIL APPLICATION NO. 35 OF 2010

IN THE MATTER OF AN APPLICATION BY JOSEPH E. IKOMOL

AND

CHRISTOPHER OKOME EMODO

TO APPLY FOR ORDERS OF JUDICIAL REVIEW OF CERTIORARI

AND PROHIBITION

IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT AND

IN THE MATTER OF THE REGISTERED LAND ACT AND

IN THE MATTER OF THE CIVIL PROCEDURE ACT AND

IN THE MATTER OF LAW REFORM ACT CAP 26 LAWS OF KENYA

BETWEEN

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

AND

THE CHAIRMAN AMUKURA LDT :::::::::::: RESPONDENTS

JOSEPH EMODO IKOMOL

CHRISTOPHER O. EMODO):::::::::::::::::::::::::: EXPARTE APPLICANTS

VERSUS

FLOBIA TATA ELIWA:::::::::::::::::::::: ::::::::::::::::: INTERESTED PARTY

JUDGMENT

The exparte applicants commenced this judicial review proceedings to challenge the award and decision of the Amukura Land Disputes Tribunal read and adopted as a judgment of the court in Busia Principal Magistrate's Court Land Case No. 15 of 2010 on 10th March 2010. The applicant was granted leave which operated as stay on 25th March 2010 by F.N. Muchemi J. The Notice of Motion seeks the following prayers;

That the Honourable court be pleased to remove into this honourable court and quash the decision of the Amukura Land Disputes Tribunal which was read and adopted as judgment of the court on 10th March 2010 vide Busia Principal Magistrate's Court land case No. 15 of 2010.

That this court be pleased to issue a prohibition order against Amukura Land Disputes Tribunal from hearing a matter concerning the subject matter land parcel No. SOUTH TESO/APOKOR/1824 in future.

On the onset, prayer 2 need not be granted by this court. The Land Disputes Tribunal Act is repealed and therefore the Amukura Land Disputes Tribunal cannot sit by operation of the Law. The court will consider only prayer 1 of the Notice of Motion.

The application is not opposed. Both the respondent and the Interested Party did not file any papers. The Interested Party sought several adjournments as borne out by the record to file a replying affidavit but did not file any. Through her counsel, she was given time to put in written submissions yet none was put in the court file. Be that as it may, I will still consider the application on its merits.

The Land Disputes Tribunal derives its mandate from Sec. 3 (1) of the Act which provides;

(a). The division of, or the determination of boundaries to land, Iincluding land held in common.

(b). A claim to occupy or work land

(c). Trespass to land.

In the instant proceedings, the exparte applicants are jointly registered as owners of L.R. No. South Teso/Apokor/1824. They acquired the land on transmission from their deceased father Barisio Emodo Oopat who had purchased it from Michael Patrick Ingopat – deceased. Michael was the husband to the Interested Party. The Tribunal after hearing both parties and visiting the disputed land made this order;

"the objectors to surrender the land (SouthTeso/Apokor/1824) back to the claimant.”

The power to give a claimant land does not form part of the powers listed under Sec. 3(1) above. The Amukura land Disputes Tribunal exceeded powers given to it under the Act when it purpottedly gave an award which provided for transfer of land from exparte applicants who were registered owners to the Interested Party. I do agree with the submission of the exparte applicants on this aspect. The decision of the Amukura Land Disputes Tribunal read and adopted as judgment of the court on 10th March 2010 in Busia PMC Land case No. 15 of 2010 is called into this court and is hereby quashed for having been given in excess of jurisdiction.

The Interested Party having not opposed the application, I will not condemn her to pay costs. I therefore make an order that each party shall bear their own costs.

JUDGMENTDATED, SIGNED, READ and DELIVERED in open court this 29 day of August 2013.

OMOLLO

JUDGE.