[2010] KEHC 3972 (KLR)
The court found that the Land Disputes Tribunal acted outside its statutory jurisdiction by purporting to determine a dispute relating to title to land and ordering the transfer and subdivision of the applicant's land. Section 3(1) of the Land Disputes Tribunal Act restricts the Tribunal's jurisdiction to matters of...
Source-derived case information.
- Citation
- [2010] KEHC 3972 (KLR)
- Parties
- Applicant: Republic; Respondent: Ekerenyo Land Disputes Tribunal; Respondent: Chief Magistrate’s Court; Respondent: Attorney General; Interested Party: Tumbo Gesami Gidion Changamwe Ochwan’i; Exparte Applicant: James Nchobera Gesami
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 80 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Substantive Motion for Judicial Review (certiorari and Prohibition)
- Outcome
- Application allowed. Tribunal and subordinate court decisions quashed by order of certiorari. Costs to the interested parties.
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Judicial Review, Certiorari, Title to Land, Quashing of Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Ekerenyo Land Disputes Tribunal
Respondent
Chief Magistrate’s Court
Respondent
Attorney General
Respondent
Tumbo Gesami Gidion Changamwe Ochwan’i
Interested Party
James Nchobera Gesami
Exparte Applicant
Procedural Posture
Miscellaneous Application / Ruling on Substantive Motion for Judicial Review (certiorari and Prohibition)
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to determine disputes relating to title to land.
- 2 Whether the award and proceedings of the Tribunal and the adoption by the subordinate court were null and void for want of jurisdiction.
Ratio Decidendi
The court found that the Land Disputes Tribunal acted outside its statutory jurisdiction by purporting to determine a dispute relating to title to land and ordering the transfer and subdivision of the applicant's land. Section 3(1) of the Land Disputes Tribunal Act restricts the Tribunal's jurisdiction to matters of boundaries, occupation, and trespass, and expressly excludes disputes over title. The adoption of the Tribunal's award by the subordinate court did not cure this fundamental defect. Consequently, both the Tribunal's proceedings and award, as well as the subordinate court's adoption and decree, were nullities. The court therefore granted an order of certiorari, quashing both...
Court Disposition
Application allowed. Tribunal and subordinate court decisions quashed by order of certiorari. Costs to the interested parties.
Orders
- The proceedings and award of the Ekerenyo Land Disputes Tribunal are removed into the High Court and quashed by order of certiorari.
- The order and decree of the Chief Magistrate’s Court adopting the Tribunal award are quashed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Miscellaneous Civil Application 80 of 2008
IN THE MATTER OF AN APPLICATION BY JAMES NCHOBERA GESAMI FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (CERTIORARI & PROHIBITION)
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT (ACT NO.18 OF 1990)
IN THE MATTER OF L.R.NORTH MUGIRANGO/BOISANGA/2321
KISII MISC.APPLICATION NO. 106 OF 2008
AND
REPUBLIC……………………………………………..APPLICANT
AND
THE EKERENYO LAND DISPUTES TRIBUNAL…1 ST RESPONDENT
CHIEF MAGISTRATE’S COURT……………………2ND RESPONDNET
ATTORNEY GENERAL………………………………….3RD RESPONDENT
TUMBO GESAMI GIDION CHANGAMWE OCHWAN’I…………INTERESTED PARTIES
EXPARTE……………………………………JAMES NCHOBERA GESAMI RULING
The interested parties herein went to Ekerenyo Land Disputes Tribunal to complain that in 1986 they had bought the exparteapplicant’s land parcel no. LR NM/Boisanga/2321 in 1986 to share equally and eventually moved and occupied the same but that theexparte applicant had refused to transfer the same to them. The Tribunal agreed with them and made decision ordering that the exparteapplicant transfers the land to them. The exparteapplicant was aggrieved by the award, which the Chief Magistrate’s Court adopted as judgment of the court, and came to this court and invoked its judicial review powers underOrder 53rule 3 of the Civil Procedure Rules. He was granted leave subsequent to which he filed this motion. An order of Certiorari is being sought to remove into this court and quash the proceedings and decision of the Tribunal (1st respondent) and also the decision of the subordinate court (2nd respondent) which adopted the award. The application was served and elicited response from only the interested parties. Mr. Ondari represented the exparte applicant and Mr. Bwonwonga was for the interested parties.
I have considered the papers filed by each side and the respective submissions. The submission by Mr. Ondari for the exparte applicant that the Tribunal did not have jurisdiction to entertain or determine this dispute is legally sound. Section 3(1)of the Land Disputes Tribunal Act (no.18 of 1990)empowers the Tribunal to handle all cases of civil nature involving the decision of, or the determination of boundaries to land, including land held in common; a claim to occupy or work land; and trespass to land. It does not have jurisdiction to hear or determine disputes relating to title to land.(SeeJotham Amunavi .V. The Chairman Sabatia Division Land Disputes Tribunal And Another, Civil Appeal no. 256 of 2002 at Kisumu).The award handed down by the Tribunal herein, and adopted by the court, has to be implemented. When that happens the exparteapplicant land will not only be taken away but will also be subdivided into two for the portions to go to the interested parties. Theexparteapplicant will have his title to the land lost in the process. The Tribunal acted well outside the powers the Act above has donated to it. The proceedings and the award were a nullity. The same for the adoption and resultant decree of the subordinate court.
The exparteapplicant has established his case, and the court hereby removes to it the proceedings and award of the Tribunal and the order and decree by the subordinate court and quashes them by order of Certiorari. Costs will be paid by the interested parties.
Dated, signed and delivered at Kisii this 20th Day of January, 2009. A.O.MUCHELULE
JUDGE
20/1/2010
Before A.O.Muchelule-J
Court clerk-Bibu
Mr. Ombicha for Mr. Ondari-present
COURT: Ruling in open court
A.O.MUCHELULE
JUDGE
20/1/2010