[2005] KEHC 395 (KLR)
The court found that the chief of Ageng’a Location acted without jurisdiction in hearing and determining a boundary dispute involving registered land parcels, as such jurisdiction is exclusively vested in the Land Registrar under section 21(2) of the Registered Land Act. The chief's decision to alter the boundary...
Source-derived case information.
- Citation
- [2005] KEHC 395 (KLR)
- Parties
- Applicant: Republic; Respondent: Chief of Ageng’a Location; Respondent: Assistant Chief of Sigalame Sublocation; Applicant: Shem Balongo alias Shem Sanya Balongo; Applicant: Agula Mbolu; Interested Party: John Mambala Mari; Interested Party: George Ngano Ogola
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 97 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Judicial Review Motion
- Outcome
- motion allowed; decision of the chief quashed by certiorari
- Judges
- JK Sergon
- Legal Topics
- Judicial Review, Certiorari, Boundary Disputes, Jurisdiction, Registered Land, Administrative Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chief of Ageng’a Location
Respondent
Assistant Chief of Sigalame Sublocation
Respondent
Shem Balongo alias Shem Sanya Balongo
Applicant
Agula Mbolu
Applicant
John Mambala Mari
Interested Party
George Ngano Ogola
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Judicial Review Motion
Legal Issues
- 1 Whether the chief of Ageng’a Location had jurisdiction to determine a boundary dispute involving registered land parcels.
- 2 Whether the decision of the chief altering the boundary between L.R. NO. SAMIA/BUDONGO/946 and L.R. NO. SAMIA/BUDONGO/947 was ultra vires and liable to be quashed by certiorari.
Ratio Decidendi
The court found that the chief of Ageng’a Location acted without jurisdiction in hearing and determining a boundary dispute involving registered land parcels, as such jurisdiction is exclusively vested in the Land Registrar under section 21(2) of the Registered Land Act. The chief's decision to alter the boundary between L.R. NO. SAMIA/BUDONGO/946 and L.R. NO. SAMIA/BUDONGO/947 was therefore ultra vires. The court held that certiorari must issue to quash the decision made without jurisdiction, following established legal principles that only decisions made within lawful authority can stand. The absence of opposition or response from the respondents or interested parties did not affect the...
Court Disposition
motion allowed; decision of the chief quashed by certiorari
Orders
- The decision of the chief of Ageng’a Location dated 13th April 2002 altering the boundary between L.R. NO. SAMIA/BUDONGO/946 and L.R. NO. SAMIA/BUDONGO/947 is quashed by an order of certiorari.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT BUSIA
MISCELLANEOUS CIVIL APPLICATION 97 OF 2002
IN THE MATTER OA AN APPLICATION FOR JUDICIAL REVIEW
AND
IN THE MATTER OF AN APPLICATION BY SHEM BALONGO AND AGULA MBOLU FOR ORDERS OF CERTORARI
BETWEEN
REPUBLIC……………….……...................………………………..…..………….APPLICANT
VERSUS
1. CHIEF OF AGENG’A LOCATION
2. ASSISTANT CHIEF OFSIGALAME SUBLOCATION………..………RESPONDENT
AND
1. JOHN MAMBALA MARI
2. GEORGE NGANO OGOLA …................................................…....INTERESTED PARTY
R U L I N G
Under order LIII rule 3 of the Civil Procedure Rules, Shem Balongo alias Shem Sanya Balongo and Agula Mbolu filed a motion seeking for orders of Judicial Review in the nature of certiorari to remove into this Court for quashing the proceedings and the decision of the Chief of Agenga Location dated 13. 4.2002 which altered the boundary between L.R. No.SAMIA/BUDONGO/946 and
L.R. NO.SAMIA/BUDONGO/947.
The motion was served upon all the parties concerned but none filed a response to counter it. This motion proceeded for hearing exparte when the Respondents and the interested parties failed to attend Court despite having been served with a hearing notice as per the affidavits of service of Joseph Orata Kweyu both sworn on 28. 2.2005.
The main ground argued by Mr. Wanyama for the applicants before this Court is to the effect that the Respondents acted without jurisdiction and contrary to the provisions of section 21 and 22 of the Registered Land Act. Mr. Wanyama argued that the powers to determine boundary disputes are vested to the Land Registrar and not the Respondents. He urged this Court to quash the decision and direct the litigants to appear before the right forum.
The material placed before this Court shows a boundary dispute between the registered owners of L.R.NO. SAMIA/BUDONGO/946 on one hand and those of L.R. NO. SAMIA/BUDONGO/947 was referred to the chief of Ageng’a Location by the assistant chief of Sigalame Sub-Location in Busia district for arbitration. It would appear the chief, Mr. Julius Wafula heard the parties to the dispute with their witnesses on 1st April, 2002. He finally gave his verdict on 13th day of April, 2002 in which he altered the boundary between the aforementioned parcels of land. The exparte applicants now state that their chief had no jurisdiction at all to entertain the dispute. Copies of the register in respect of the two aforementioned parcels of land were annexed to the verifying affidavit of Shem Sanya Balongo sworn on 22nd July, 2002. A copy of the decision and its English translation were also annexed to the same affidavit. It is apparent that the parcels of land are registered under the registered Land Act Cap 300 Laws of Kenya.
The Provisions of section 21(2) of the registered Land Act gives the Land registrar exclusive powers to hear and determine boundary disputes arising out of land registered under the Act. It is evident from the chief’s minutes dated 13th April, 2002 that the chief Ageng’a Location heard and determined a boundary dispute relating to L.R. NO.SAMIA /BUDONGO/946 and L.R. NO.SAMIA/BUDONGO/947. The Law did not vest such jurisdiction on a chief. The chief therefore heard and determined a dispute which he did not have a jurisdiction. In such a case certiorari will issue to quash a decision made without jurisdiction.
The Court of Appeal in the case of KENYA NATIONAL EXAMINATION COUNCIL AND REPUBLIC EXPARTE GEOFFREY GATHENJI NJOROGE AND 9 OTHERS CIVIL APPEAL NO. 266 OF 1996.
Stated as follows:-
“ Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.”
The upshot therefore is that I will allow the motion dated 5th August, 2002 in terms of prayer (a). I direct that each party meets his or her own costs in view of the fact that the parties willingly submitted themselves to the authority of their chief.
DATED AND DELIVERED THIS 8th DAY OF April 2005
J. K. SERGON
JUDGE