[2010] KEHC 3986 (KLR)
The court found that the Nyamusi Land Disputes Tribunal lacked jurisdiction to entertain a claim regarding ownership of registered land under section 3(1) of the Land Disputes Tribunal Act. Consequently, the proceedings and decision made by the Tribunal were null and void. The court also held that the ex parte...
Source-derived case information.
- Citation
- [2010] KEHC 3986 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman, Nyamusi Land Disputes Tribunal; Respondent: Ainya Nyamasege; Respondent: District Land Registrar Nyamira; Respondent: Senior Resident Magistrate Nyamira
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 43 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Certiorari
- Outcome
- Application granted as prayed.
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Ownership of Registered Land, Certiorari Proceedings, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman, Nyamusi Land Disputes Tribunal
Respondent
Ainya Nyamasege
Respondent
District Land Registrar Nyamira
Respondent
Senior Resident Magistrate Nyamira
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Certiorari
Legal Issues
- 1 Whether the Nyamusi Land Disputes Tribunal had jurisdiction to determine ownership of registered land.
- 2 Whether the proceedings and decision of the Tribunal were null and void for want of jurisdiction.
- 3 Whether the ex parte applicant had capacity to be sued without letters of administration.
Ratio Decidendi
The court found that the Nyamusi Land Disputes Tribunal lacked jurisdiction to entertain a claim regarding ownership of registered land under section 3(1) of the Land Disputes Tribunal Act. Consequently, the proceedings and decision made by the Tribunal were null and void. The court also held that the ex parte applicant, as widow of the deceased registered owner, had no capacity to be sued in the absence of letters of administration. On the procedural objection, the court determined that the applicant had complied with the requirements of Order 53 of the Civil Procedure Rules, as the documents were properly lodged with the deputy registrar, and certification by the registrar was not...
Court Disposition
Application granted as prayed.
Orders
- The application for certiorari is granted.
- The proceedings and decision of the Nyamusi Land Disputes Tribunal are quashed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Miscellaneous Civil Application 43 of 2009
REPUBLIC.....................................................................................APPLICANT
-VERSUS-
THE CHAIRMAN
NYAMUSI LAND DISPUTES TRIBUNAL.....................1 ST RESPONDENT
AINYA NYAMASEGE.....................................................2ND RESPONDENT
THE DISTRICT LAND REGISTRAR NYAMIRA..........3RD RESPONDENT
THE SENIOR RESIDENT MAGISTRATE NYAMIRA...4TH RESPONDENT
RULING
The factual position of this application is not in dispute. The exparteapplicant is the widow of the deceased Francis Makana Mogaka who was the registered owner of land parcel no. North Mugirango/Bomwagamo/154 measuring about 0. 6 Hectares. The 2nd respondent lodged a dispute with Nyamusi Land Disputes Tribunal (1st respondent) claiming the land. The 1st respondent heard the dispute and, on 7/1/2009, determined that the land belonged to the 2nd respondent. It directed the cancellation of the register to enable fresh registration in the name of the 2nd respondent. The award was filed before the Senior Resident magistrate at Nyamira (4th respondent) who, on 16/4/2009, confirmed the same as decision of the court and issued a decree for execution.
Under section 3 (1) of the Land Disputes Tribunal Act (no.18or 1990)the 1st respondent had no jurisdiction to entertain a claim regarding ownership of registered land and therefore the proceedings and decision made therein were null and void. (SeeJotham Amunavi .V. The Chairman Sabatia Division Land Disputes Tribunal and, Another, Civil Appeal no. 256 of 2002 at Kisumu).
Secondly, when the 1st Repondent was accepting this claim to be heard the owner of the land (the deceased) was dead. His wife (theexparte applicant) had no capacity to be sued as she had not taken out letters to administer her late husband’s estate.
Mr. Soire for the 2nd respondent argued that the application was incompetent for non-compliance with Order 53rule7 of the Civil Procedure Rules. His case was that the order against which the applicant seeks that certiorari be issued has not been certified by the registrar. Rule 3 requires that notice of the application for leave be lodged with the registrar, and together with the notice should be lodged copies of the statement and affidavits. Rule 7 provides that a copy of the order sought to be quashed should also be lodged. The copy should be verified by affidavit. I agree with Mrs. Asati that theexparteapplicant complied with the requirements. The issue of the registrar certifying these documents does not arise. The definition of the “Registrar” insection 2 of the Civil Procedure Actincludes the district registrar and deputy registrar. The documents were lodged with the deputy Registrar, High Court of Kenya at Kisii.
The application is hereby granted as prayed.
Dated, signed and delivered at Kisii this 20th day of January, 2010.
A.O.MUCHELULE
JUDGE
20/1/2010.
Before A.O.Muchelule-J
Court clerk-Bibu
Mrs. Asati for Applicant
Court: ruling in open court
A.O.MUCHELULE
JUDGE
20/1/2010