[2012] KEHC 1533 (KLR)
The court held that the Land Disputes Tribunal acted outside its statutory jurisdiction by making orders relating to the subdivision and transfer of registered land, as the repealed Land Disputes Tribunal Act did not empower it to determine issues of title. Furthermore, the tribunal and the lower court failed to...
Source-derived case information.
- Citation
- [2012] KEHC 1533 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Siaya D.L.D. Tribunal; Respondent: Principal Magistrate's Court Siaya; Respondent: District Land Registrar Siaya; Respondent: District Land Surveyor Siaya; Respondent: Paul Nyagol Waganda
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 361 of 2011
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Title to Registered Land, Judicial Review, Succession and Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman Siaya D.L.D. Tribunal
Respondent
Principal Magistrate's Court Siaya
Respondent
District Land Registrar Siaya
Respondent
District Land Surveyor Siaya
Respondent
Paul Nyagol Waganda
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to determine issues relating to title to registered land.
- 2 Whether the tribunal's decision was ultra vires for ordering subdivision of registered land.
- 3 Whether the adoption of the tribunal's award by the lower court was valid given the death of the registered proprietor before judgment.
Ratio Decidendi
The court held that the Land Disputes Tribunal acted outside its statutory jurisdiction by making orders relating to the subdivision and transfer of registered land, as the repealed Land Disputes Tribunal Act did not empower it to determine issues of title. Furthermore, the tribunal and the lower court failed to consider that the registered proprietor had died before the judgment was delivered, and no legal representative of the estate was involved in the proceedings. These procedural and jurisdictional defects rendered the tribunal's decision and its adoption by the lower court invalid. The application for judicial review was therefore allowed, and the orders of certiorari, prohibition,...
Court Disposition
application allowed
Orders
- Orders of certiorari issued to quash the 1st and 2nd respondents' decision to award a portion of South Gem/Kaudha/183 to the 5th respondent.
- Orders of prohibition issued to restrain the 3rd, 4th, and 5th respondents from enforcing the tribunal's order.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
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IN THE MATTER OF THE REGISTERED LANDS ACT CAP 300 LAWS OF KENYA
AND
IN THE MATTER OF TEH LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990 SECTIONS 3 91) (4) (7) AND (8)
AND
IN THE MATTER OF THE SUCCESSION ACT CAP 160 LAWS OF KENYA
AND
IN THE MATTER OF TEH PARCEL OF LAND KNOWN AS SOUTH GEM/KAUDHA / 183
REPUBLIC …...................................................................................................APPLICANT
VERSUS
THE CHAIRMAN SIAYA D. L. D. TRIBUNAL …..............................1ST RESPONDNET
THE PRINCIPAL MAGISTRATE'S COURT SIAYA..........................2ND RESPONDNET
THE DITRSICT LAND REGISTRAR SIAYA …..................................3RD RESPONDENT
THE DISTRICT LAND SURVEYOR SIAYA …...................................4TH RESPONDENT
PAUL NYAGOL WAGANDA..............................................................5TH RESPONDNET
JUDGMENT
The applicants Notice of Motion dated 24th October 2011 prays for Orders of certiorari to quash the 1st and 2nd Respondents decision to award a portion of Land parcel number South Gem / Kaudha / 183 to the 5th Respondent. It further prays for Orders of prohibition so as to prohibit the 3, 4, and 5th respondent from enforcing the Order earlier issued. Finally it prays for the writ of mandamus to compel the 3rd and 4th respondent to restore the suit property to its original position. The application has been supported by the statements and the affidavit of William Odipo Nyagol.
The current registered owner of the suit property is Paul Odipo Nyagol. The 5th respondent filed his claim at Siaya Land Disputes Tribunal Case No. 91 of 2006 where on 10th December 2008 the said tribunal ordered as follows:-
(a)The suit land South Gem / Kaudha / 185 be resurveyed and sub – divided into two equal parts thus the upper part bordering the objectors home be registered in his names and the remaining portion to remain in the names of the objector Paulo Nyagol Othina.
(b)The land Registrar and District Surveyor to effect this Order as soon as possible.
(c)Rights of Appeal within 30 days
The said judgment was adopted as the Order of the Court on 9th December 2010.
The gist of the applicant application is that the tribunal did not have jurisdiction to entertain this claim as this was land which had been registered. He further argued that by the time the Judgment was being read and adopted Paulo Nyagol Othina the registered proprietor had passed on.
The State Counsel supported the application and basically enjoined herself with the arguments of Mr. Ragot Counsel for the applicant.
The 5th respondent did file a response vide his replying affidavit filed on 6th February 2012 and sworn the same day. He claimed that the suit land belonged to his grandfather Nyagol Okwe who gave it to his father Johannes Waganda Nyagol who passed the land to him and his brother Lucas Otieno Waganda.
I have read the pleadings herein and heard the rival oral arguments. It is trite law now that the repealed land Disputes Tribunal Act Chapter 303 A Laws of Kenya did not empower the tribunal to determine issues to do with title to land. By ordering the land to be divided into two the tribunal acted ultra vires.
It is further argued by the applicant and admitted that the later Paul Nyagol Othina died on 8th August 2008 before the judgment of the tribunal was delivered on 10th December 2008. It follows therefore that the tribunal although they may have heard the case during the lifetime of the deceased ought to have inquired whether there was any legal representative of the estate of the late Paul Nyagol Othina.
Further the lower court equally err by failing to inquire before adopting the orders of the tribunal. Without going into other merited points raised by Mr. Ragot this application ought to succeed. The same is allowed as prayed. The applicant's costs shall be shared however by all the respondents.
Dated, signed and delivered at Kisumu this 31st day of October 2012.
H.K. CHEMITEI JUDGE
In the presence of:
Ragot for the applicant
Mwamu for Ochieng for the defendant
HKC/aao