[2013] KEHC 1622 (KLR)
The court found that the Land Disputes Tribunal heard and determined the dispute on 12th September 2011, after the Land Disputes Tribunal Act had been repealed by the Environment and Land Court Act effective 30th August 2011. As a result, the Tribunal was not legally constituted at the time of the hearing and lacked...
Source-derived case information.
- Citation
- [2013] KEHC 1622 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman, Land Dispute Tribunal – Lurambi Division; Respondent: Chief Magistrate – Kakamega; Respondent: Charles Sakwa; Applicant: Herbert Andala Inyende
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 23 of 2012
- Procedural Posture
- Judicial Review / Ruling on Notice of Motion for Certiorari
- Outcome
- Application allowed. Certiorari granted. Costs to ex-parte applicant.
- Judges
- GMA Dulu
- Legal Topics
- Judicial Review, Certiorari, Jurisdiction of Tribunals, Repeal of Statute, Land Disputes, Illegality of Decision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman, Land Dispute Tribunal – Lurambi Division
Respondent
Chief Magistrate – Kakamega
Respondent
Charles Sakwa
Respondent
Herbert Andala Inyende
Applicant
Procedural Posture
Judicial Review / Ruling on Notice of Motion for Certiorari
Legal Issues
- 1 Whether the Land Disputes Tribunal had legal authority to adjudicate the dispute after the repeal of its enabling Act.
- 2 Whether the decision of the Tribunal and subsequent adoption by the Chief Magistrate's Court were null and void.
Ratio Decidendi
The court found that the Land Disputes Tribunal heard and determined the dispute on 12th September 2011, after the Land Disputes Tribunal Act had been repealed by the Environment and Land Court Act effective 30th August 2011. As a result, the Tribunal was not legally constituted at the time of the hearing and lacked jurisdiction to adjudicate the matter. Any decisions or proceedings conducted by the Tribunal after the repeal were therefore illegal, null, and void. The adoption of the Tribunal's award by the Chief Magistrate's Court was similarly invalid. The court concluded that certiorari must issue to quash the Tribunal's proceedings and the Chief Magistrate's adoption of the award, as...
Court Disposition
Application allowed. Certiorari granted. Costs to ex-parte applicant.
Orders
- An order of certiorari is issued quashing the proceedings and decisions of the Lurambi Division Land Dispute Tribunal case No. 150 of 2011 and the Chief Magistrate's Court Award No. 58 of 2011.
- The interested party shall pay the ex-parte applicant's costs of these proceedings.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
JUDICIAL REVIEW NO. 23 OF 2012
REPUBLIC …………………........…………………………… APPLICANT
VERSUS
THE CHAIRMAN, LAND DISPUTE
TRIBUNAL – LURAMBI DIVISION ……….......…….. 1ST RESPONDENT
THE CHIEF MAGISTRATE – KAKAMEGA …...... 2ND RESPONDENT
AND
CHARLES SAKWA ……………........……………….. INTERESTED PARTY
AND
HERBERT ANDALA INYENDE ……...........……….EX-PARTE APPLICANT
RULING
Before me is a Notice of Motion dated 29th March 2012 filed by the ex-parte applicant herein under Order 53 rule 3 of the Civil Procedure Rules. The reliefs sought are two as follows -
That an order of certiorari do issue directed against the Lurambi Division Land Dispute Tribunal case No. 150 of 2011 concerning land parcel Butsotso/Shikoti/748 together with the proceedings and all decisions on Kakamega Chief Magistrate's Court Award No. 58 of 2011.
That costs be provided for.
The application was supported by a statement of facts dated 7th March 2012 and an affidavit verifying the facts dated the same day, both filed with the application for leave as required in Judicial Review proceedings. Counsel for the ex-parte applicant, Gabriel Fwaya advocate filed written submissions.
The application is opposed by the interested party who filed a replying affidavit which he swore on 8th November, 2012. His counsel, Wilfrida Osodo filed written submissions on 4th of October, 2013.
Counsel who appeared at the hearing, Mr. Shiveka for the applicant and Ms Andia for the interested party highlighted the written submissions. I have perused both sets of written submissions.
This application is hinged on whether the Land Disputes Tribunal was legally in existence to adjudicate on the matter at the time in question. Counsel for the ex-parte applicant has submitted that, under the Environment and Land Court Act No. 19 of 2011 Section 21, the Land Disputes Tribunal Act No. 18 of 1990 was repealed. The respondent's counsel has not given any contrary view. The dispute herein was heard by the District Land Disputes Tribunal on 12. 9.2011, after the enabling Act was repealed on 30. 8.2011 when the Environment and Land Court Act came into effect. In view of this, there could not have been a legally constituted Land Disputes Tribunal on 12. 9.2011 to adjudicate on the matter. That in itself, means that the decision herein contested was not made by a legally constituted Land Disputes Tribunal. The decision was illegal, null and void. On that account alone, certiorari orders will issue.
Consequently, I allow the application and grant certiorari orders as requested in prayer 1. The interested party will pay the ex-parte applicant’s costs of these proceedings.
Dated at Kakamega this 31st day of October, 2013
George Dulu
JUDGE