[2012] KEHC 3720 (KLR)
The court found that the Lugari Land Disputes Tribunal acted outside its statutory mandate by making a decision on ownership of registered land, which is not within the jurisdiction conferred by section 3(1) of the Land Disputes Tribunal Act. Furthermore, the Tribunal's decision was not properly signed by its...
Source-derived case information.
- Citation
- [2012] KEHC 3720 (KLR)
- Parties
- Applicant: Gabriel Netia Oloo; Respondent: Chairman, Land Disputes Tribunal Lugari Division; Respondent: Chief Magistrate – Kakamega; Interested Party: Janerusa Agutu Netia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 4A of 2010
- Procedural Posture
- Judicial Review / Ruling on Notice of Motion for Certiorari
- Outcome
- Application allowed. Tribunal and adoption decisions quashed.
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Certiorari, Quashing of Tribunal Awards, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Netia Oloo
Applicant
Chairman, Land Disputes Tribunal Lugari Division
Respondent
Chief Magistrate – Kakamega
Respondent
Janerusa Agutu Netia
Interested Party
Procedural Posture
Judicial Review / Ruling on Notice of Motion for Certiorari
Legal Issues
- 1 Whether the Lugari Land Disputes Tribunal had jurisdiction to determine ownership of registered land parcels.
- 2 Whether the Tribunal's decision and subsequent adoption by the Chief Magistrate's Court were nullities for want of jurisdiction.
- 3 Whether the Tribunal's proceedings complied with statutory requirements regarding composition and signing of decisions.
Ratio Decidendi
The court found that the Lugari Land Disputes Tribunal acted outside its statutory mandate by making a decision on ownership of registered land, which is not within the jurisdiction conferred by section 3(1) of the Land Disputes Tribunal Act. Furthermore, the Tribunal's decision was not properly signed by its members, and the composition of the Tribunal was not reflected in the decision, raising doubts about compliance with statutory requirements. As a result, the Tribunal's decision and the subsequent adoption by the Chief Magistrate's Court were nullities and incapable of enforcement. The court therefore allowed the application for certiorari, quashing both the Tribunal's decision and...
Court Disposition
Application allowed. Tribunal and adoption decisions quashed.
Orders
- The decision of the Lugari Division Land Disputes Tribunal case No. 15 of 2006 concerning land parcels No. KAKAMEGA/CHEKALINI/1022 and the unnumbered County Council Plot exchanged with KAKAMEGA/CHEKALINI/1020 together with the proceedings in Kakamega Chief Magistrate’s court Civil Award No. 59/09 are removed into...
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT KAKAMEGA
JUDICIAL REVIEW 4A OF 2010
IN THE MATTER OF AN APPLICATION BY GABRIEL NETIA OLOO FOR ORDERS OF JUDICIAL REVIEW CERTIORARI
AND
IN THE MATTER OF THE DECISION AND AWARD OF THE LAND DISPUTE TRIBUNAL LUGARI DIVISION CASE NO. KAKAMEGA/LUGARI/CHEKALINI/015/06 CONCERNING LAND PARCELS – KAKAMEGA/CHEKALINI/1022 AND THE UNNUMBERED COUNTY COUNCIL PLOT EXCHANGED WITH KAKAMEGA/CHEKALINI/1020
AND
IN THE MATTER OF ADOPTION PROCEEDINGS COMMENCED IN KAKAMEGA CHIEF MAGISTRATE’S COURT AWARD NO. 59 OF 2009
AND
IN THE MATTER OF THE REPUBLIC ……………………………………………APPLICANT
VERSUS
THE CHAIRMAN,
LAND DISPUTES TRIBUNAL LUGARI DIVISION ......................................... RESPONDENT
THE CHIEF MAGISTRATE – KAKAMEGA ……………….………………… RESPONDENT
AND
JANERUSA AGUTU NETIA .................................................................... INTERESTED PARTY
AND
EXPARTE – GABRIEL NETIA OLOO …………………………………………….APPLICANT
R U L I N G
The Ex-parte Applicant has with the leave of the court filed the Notice of Motion dated 30. 3.10 for the following orders:-
1. That an order of Certiorari do issue directed against the Lugari Land Disputes Tribunal to remove into this court and quash the decision in Lugari Land Dispute Tribunal No. Kakamega/Lugari/Chekalini/015/06 concerning land parcels Kakamega/Chekalini/1022 and the unnumbered County Council Plot exchanged with Kakamega/Chekalini/1030 together with the proceedings, adoption and decision in Kakamega Chief Magistrate Civil Award No. 59 of 2009.
2. Costs be provided for.
The main ground on which the application is premised is that the Tribunal lacked Jurisdiction and therefore the Tribunal’s decision was a nullity.
In the affidavit verifying the facts contained in the Statutory Statement, the applicant deponed that he is the registered owner of Land Parcel No. KAKAMEGA/CHEKALINI/1022. That he also owned land parcel No. KAKAMEGA/CHEKALINI/1032 which he exchanged with the Kakamega County Council for a Plot which is yet to be surveyed and given a number. That the Interested Party, JANERUSA AGUTU NETIA who is his wife commenced the proceedings before the Tribunal. According to the Applicant, the proceedings and decision of the Tribunal are a nullity ab nitio and incapable of being adopted and enforced in court.
No affidavit in reply to the application was filed by the Respondent. The applicant and the Respondent filed written submissions. I have considered the pleadings and the submissions filed.
In its award, the Tribunal made the following orders, inter alia:-
“The four acres given to JANERUSA should be surveyed by a Government Surveyor. The acres should extend to TURBO-WEBUYE road so that mama Janerusa can get an access road. Also the 5½ acres exchanged by the old Kakamega County Council to mzee should be shared equally.”
This was a decision on ownership of land. The Tribunal clearly acted outside its mandate as provided for by S.3 of the Land Disputes Tribunal Act No. 18 of 1990 which stipulates as follows:-
“S.3 (1) Subject to this Act, all cases of a civil nature involving a dispute as to –
(a)The division of, or the determination of boundaries to land, including land held in common;
(b)A claim to occupy or work land; or
(c)Trespass to land.
Shall be heard and determined by a Tribunal established under section 4. ”
The Tribunal’s decision is signed by one Mr. Osbourne Libaako as the Secretary on behalf of the Chairman. The composition of membership of the tribunal is not reflected in the said decision. The decision of the Tribunal is also not signed by the members. It is therefore not possible to tell whether S.4 and S.6 of the Land Disputes Tribunal was complied with by the Tribunal.
The Tribunal’s decision is therefore anullity. The Notice of Motion dated 30. 8.10 has merit and is allowed. The decision of the Lugari Division Land Disputes Tribunal case No. 15 of 2006 concerning land parcels No. KAKAMEGA/CHEKALINI/1022 and the unnumbered County Council Plot exchanged with KAKAMEGA/CHEKALINI/1020 together with the Proceedings in Kakamega Chief Magistrate’s court Civil Award No. 59/09 are removed into this court and are hereby quashed. Each party to bear its own costs.
Delivered, dated and signed at Kakamega this 15th day of March, 2012
B. THURANIRA JADEN
J U D G E