[2013] KEHC 2471 (KLR)
The court found that the Land Disputes Tribunal exceeded its jurisdiction by ordering the cancellation and rectification of the land register, powers which are reserved for the High Court. The Tribunal's award, which purported to alter registered ownership and acreage of the suit property, was ultra vires and...
Source-derived case information.
- Citation
- [2013] KEHC 2471 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Kimilili Land Disputes Tribunal; Applicant: Shem Nalianya Sibitali; Defendant: Wensilous Malaba Siakora
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 290 of 2005
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application allowed. Decision and award of Kimilili Land Disputes Tribunal quashed. Each party to bear own costs.
- Judges
- AA Omollo
- Legal Topics
- Judicial Review, Land Title Rectification, Tribunal Jurisdiction, Limitation of Actions, Cancellation of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman Kimilili Land Disputes Tribunal
Respondent
Shem Nalianya Sibitali
Applicant
Wensilous Malaba Siakora
Defendant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to order cancellation or rectification of land title.
- 2 Whether the Tribunal's award exceeded its statutory mandate under the Land Disputes Tribunal Act.
- 3 Whether the interested party's claim was barred by the Limitation of Actions Act.
Ratio Decidendi
The court found that the Land Disputes Tribunal exceeded its jurisdiction by ordering the cancellation and rectification of the land register, powers which are reserved for the High Court. The Tribunal's award, which purported to alter registered ownership and acreage of the suit property, was ultra vires and therefore null and void. The court also noted that even if the Tribunal's reference to the wrong parcel number was a typographical error, it did not cure the jurisdictional defect. Consequently, the court quashed the Tribunal's decision and the subsequent adoption of the award as a judgment of the magistrate's court.
Court Disposition
Application allowed. Decision and award of Kimilili Land Disputes Tribunal quashed. Each party to bear own costs.
Orders
- The decision of Kimilili Land Disputes Tribunal Land Case No. 10 of 2004 read as judgment in Kimilili RMC Land Case No. 38 of 2005 is hereby quashed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. APPLICATION CASE NO. 290 OF 2005
IN THE MATTER OF AN APPLICATION BY SHEM NALIANYA SIBITALI
FOR JUDICIAL REVIEW ORDERS OF CERTIORARI
AND
IN THE OF THE DECISION OF THE LAND DISPUTES TRIBUNAL
ACT NO. 18 OF 1990 IN THE KIMILILI LDT NO. 10 OF 2004
AND KIMILILI RESIDENT MAGISTRATE'S COURT LAND CASE NO. 38 OF 2005 MADE ON 13/9/2005
BETWEEN
REPUBLIC........................................................................... APPLICANT
AND
THE CHAIRMAN KIMILILI L.D TRIBUNAL............................................RESPONDENT
EXPARTE
SHEM NALIANYA SIBITALI.............................EX-PARTE APPLICANT
VERSUS
WENSILOUS MALABA SIAKORA .....................INTERESTED PARTY
JUDGMENT
[A]. By this Judicial Review application, the exparte applicants beingunhappy with the decision of Kimilili land Disputes Tribunal seeks for orders;
That the proceedings, decision and award of Kimilili Land Disputes Tribunal in claim No. Kimilili Land Disputes Tribunal/10/2004 read as judgment of the court on 13th September 2005 vide Kimilili RMC land case No. 28 of 2005 be removed into the honourable court and quashed.
The costs of this application be provided for.
[B]. The Tribunal after hearing the evidence of the parties read this award;
“In view of the above observations this Tribunal rules thatKimilili/Kimilili/1268 should be registered in the name ofWensilous Malaba erasing the name of Shem Nalianya from the register.
The Land Registrar to ammend the register of Kimilili/Kimilili/1268 to read 9m by 31 m which is half plot in the name of Samuel W. Wamalwa in order to liaison with the ground measurements”
The exparte applicant submits the Land Disputes Tribunal had no jurisdiction to adjudicate on land dispute touching on title. He also stated on the grounds that the interested party's claim is barred by Limitation of Actions Act.
[C]. The interested party opposed the application. He filed a replying affidavit. In it he averred that the exparte applicant owned land title Kimilili/Kimilili/1266 in which he has no claim. He urged the court to order title deed for Kimilili/Kimilili/1267 to read his name and a new acreage of 0. 027 ha.
[D]. The exparte applicant annexed to his supporting affidavit a copy of title deed for L.R. Kimilili/Kimilili/1267 in his names (Sem Nalianya Sibitali) issued on 31st July 2003. The dispute before the Tribunal was lodged in 2004. From the proceedings, the dispute commenced on 2nd November 2004 and award reached on 30th November 2004. It was read as an order of the court on 13th September 2005. It therefore follows that the exparte applicant was the registered owner of the suit parcel at the time of hearing of the dispute before Kimilili Land Disputes Tribunal.
[E]. The Land Disputes Tribunal derived its jurisdiction from the Section 3(1) of the Land Disputes Tribunal Act (repealed) under the provisions of this section, they are not given powers to make awards that result in alteration of the register or cancellation of title. By the reaching of the award they ordered for both the cancellation of title in ordering rectification of the register to have the name of Wenslous Malaba replace Shem Nalianya from the register. They also ordered rectification of register by changing the size of Kimilili/Kimilili/1268 to read 9m by 31m without any the report of the Government Surveyor. The power to cancel title or rectify the register vests in the High Court only. The Tribunal thus exceeded their mandate by virtue of their decision/award. In any event, the Interested Parties claim was based on contract of sale of land which the Tribunal had no capacity to enforce.
[F]. The other mistake the Tribunal did was to introduce land parcel Kimilili/Kimilili/1268 in their award instead of Kimilili/Kimilili/1267 which was the subject of the dispute. However even if this was a typographical error, they would still have exceeded their mandate because the correction of the numbers would not change the effect of their award/decision.
[G]. Consequently I allow the application, I call into this court the decision of Kimilili Land Disputes Tribunal Land case No.10 of 2004 read as the judgment of the court in Kimilili RMC land case No. 38 of 2005 and set it aside/quashed. I order that each party shall bear their own costs.
JUDGMENTDATED, DELIVERED AND SIGNED In open court this 29th day of August 2013.
A. OMOLLO
JUDGE