[2017] KEHC 5789 (KLR)
The court found that the Webuye Land Disputes Tribunal acted outside its statutory jurisdiction by purporting to determine a dispute relating to title to land, which is expressly excluded from its mandate under the Land Disputes Tribunal Act No. 18 of 1990. Consequently, the Tribunal's decision and its adoption as a...
Source-derived case information.
- Citation
- [2017] KEHC 5789 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Webuye Land Disputes Tribunal; Applicant: Eliud Wafula Sichangi; Defendant: Phoebe Aluochi Wafu
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 158 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judicial Review Orders of Prohibition and Certiorari
- Outcome
- application allowed
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Land Title Disputes, Certiorari, Prohibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman Webuye Land Disputes Tribunal
Respondent
Eliud Wafula Sichangi
Applicant
Phoebe Aluochi Wafu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Judicial Review Orders of Prohibition and Certiorari
Legal Issues
- 1 Whether the Webuye Land Disputes Tribunal had jurisdiction to determine title to land under Act No. 18 of 1990.
- 2 Whether the decision of the Tribunal and its adoption by the Magistrate's Court should be quashed by certiorari.
- 3 Whether a prohibition order should issue against the Tribunal from hearing the matter in future.
Ratio Decidendi
The court found that the Webuye Land Disputes Tribunal acted outside its statutory jurisdiction by purporting to determine a dispute relating to title to land, which is expressly excluded from its mandate under the Land Disputes Tribunal Act No. 18 of 1990. Consequently, the Tribunal's decision and its adoption as a judgment by the Magistrate's Court were nullities. The Attorney General's arguments regarding jurisdiction and the necessity of joining the Principal Magistrate as a party were rejected as unfounded in law. The application for judicial review was therefore allowed, with the orders of certiorari and prohibition granted as sought.
Court Disposition
application allowed
Orders
- The decision of the Webuye Land Disputes Tribunal adopted as judgment of the court on 14th September 2010 in Land Case No. 23 of 2010 is quashed.
- A prohibition order is issued restraining the Webuye Land Disputes Tribunal from hearing the matter relating to Land parcel No. Ndivisi/Makuselwa/1903 in future.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
MISC CIVIL APPL NO. 158 OF 2010.
IN THE MATTER OF AN APPLICATION BY ELIUD WAFULA SICHANGI FOR
LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW OF PROHIBITION AND (CERTIORARI).
IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990
AND
IN THE MATTER OF REGISTERED LANDS ACT CAP 300 LAWS OF KENYA
AND
IN THE MATTER OF CIVIL PROCEDURE ACT 21 LAWS OF KENYA
AND
IN THE MATTER OF LAW REFORM ACT CAP 26 LAWS OF KENYA
BETWEEN
REPUBLIC………………………………………………...APPLICANT
AND
THE CHAIRMAN WEBUYE LAND
DISPUTES TRIBUNAL…………….………….………RESPONDENT
ELIUD WAFULA SICHANGI….……..…….EXPARTE – APPLICANT
VERSUS
PHOEBE ALUOCHI WAFU……………...……INTERESTED PARTY
RULING
[1]. This application is brought under order L III rule 3(1). The applicant prays that the decision of the Webuye Land Disputes Tribunal which was read and adopted as the Judgment of the court on 14th September 2010 by the Webuye Magistrates court in Land case No. 23 of 2010 be quashed further that the court to issue a prohibition order against the Webuye Land Disputes Tribunal from Hearing the matter subject to Land parcel No. Ndivisi/Makuselwa/1903 in future. The application is grounded on reasons stated in the Six grounds therein and the affidavit of Eliud Wafula Sichangi the applicant.
[2]. The Attorney General was duly served and he filed his grounds of opposition on 7/11/2016. In his grounds of opposition, he argues that the proceedings before Webuye Land Disputes Tribunal were properly done. That the application is bad in law, incompetent and does not lie against the respondent. That the Tribunal had jurisdiction as provided by Act No. 18 of 1990 now repeased.
[3]. The interested party never filed any grounds of objection and or a replying affidavit at all.
[4]. The parties were served with a hearing notice to attend the Court on 30/3/2017. The affidavit of service was filed in court on 23/11/2016. On the hearing date neither the Attorney General nor the interested party attended the court. The applicant was in court and told the court that the application was not opposed. I set a date of the ruling on 26/4/2017.
[5]. The application was of course opposed by the Attorney General. It was however not opposed by the interested party. The Attorney Generals reasons for opposing the application cannot be maintained. The law in place as mandated by Act No. 18 of 1990 did not give the elders jurisdiction to determine title to land. Many authorities abound to that proposition from the High Court and Court of Appeal. It was argued that the Principal Magistrate should be made a party. The applicant does not have to make the Principal Magistrate who entered Judgment as a party to this suit. The law does not sunction such a proposition. Once a court has no jurisdiction everything else that followed was a nullity. The Attorney Generals grounds of opposition are clearly without merit.
The interested party who was served did not contest the application.
The application is therefore allowed with no orders as to costs.
It is so ordered.
Ruling read in open court before Mr. Situma.
DATED at BUNGOMA this 26th March day of March, 2017.
S. MUKUNYA
JUDGE.
In the presence of:
Coram: Hon. S. Mukunya (Judge)
Gladys: Court Assistant
Ruling for Exparte Applicant