[2014] KEHC 4338 (KLR)
The Tribunal was not properly constituted as one of its members, George N. Mbuli, was not a gazetted elder for Kitui District, contrary to the requirements of sections 4(2) and 5(1) of the Land Disputes Tribunal Act. Furthermore, the Tribunal exceeded its statutory jurisdiction by awarding ownership of the disputed...
Source-derived case information.
- Citation
- [2014] KEHC 4338 (KLR)
- Parties
- Applicant: Republic; Respondent: Ikutha Land Disputes Tribunal; Applicant: James Kasina Ndambu; Interested Party: Julius Kyalo Paul
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 231 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Certiorari
- Outcome
- Application allowed; decision of the Ikutha Land Disputes Tribunal quashed.
- Judges
- BT Jaden
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Composition of Tribunal, Natural Justice, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Ikutha Land Disputes Tribunal
Respondent
James Kasina Ndambu
Applicant
Julius Kyalo Paul
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Certiorari
Legal Issues
- 1 Whether the Ikutha Land Disputes Tribunal was properly constituted in accordance with the Land Disputes Tribunal Act.
- 2 Whether the Tribunal exceeded its jurisdiction by determining ownership of land rather than boundaries.
- 3 Whether the marking of the boundary in the absence of the applicant violated the rules of natural justice.
Ratio Decidendi
The Tribunal was not properly constituted as one of its members, George N. Mbuli, was not a gazetted elder for Kitui District, contrary to the requirements of sections 4(2) and 5(1) of the Land Disputes Tribunal Act. Furthermore, the Tribunal exceeded its statutory jurisdiction by awarding ownership of the disputed land to the Interested Party, whereas its mandate is limited to boundary disputes, occupation, or trespass. The process of marking the boundary was irregular, as it was delegated to a third party and conducted in the absence of the applicant, violating the rules of natural justice. These procedural and substantive defects rendered the Tribunal's decision unlawful and subject to...
Court Disposition
Application allowed; decision of the Ikutha Land Disputes Tribunal quashed.
Orders
- An order of certiorari is issued to remove to the High Court and quash the decision of the Ikutha Land Disputes Tribunal in Civil Case No. L. 82/2000 delivered on 1st February 2001.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CIVIL MISC. APPLICATION NO. 231 OF 2001
IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI
AND
IN THE MATTER OF IKUTHA LAND DISPUTES TRIBUNAL CASE 82 OF 2000
REPUBLIC.............................................................APPLICANT
VERSUS
IKUTHA LAND DISPUTES TRIBUNAL.................RESPONDENT
AND
JULIUS KYALO PAUL...............................INTERESTED PARTY
JAMES KASINA NDAMBU.....................EX PARTEAPPLICANT
R U L I N G
1. The application dated 17/8/2001 seeks orders that:
1. That an order of certiorari do issue to remove to the High Court the decision of theIkutha Land Disputes TribunalinCivil Case No. L. 82/2000delivered on 1st February 2001 for the purpose of quashing the said decision.
2. That costs of this application be paid to the ex parte Applicant.”
2. According to the statement of facts and the verifying affidavit, the Ikutha Land Disputes Tribunal in decision dated 1/2/2001 in respect of Land Case No. 82 of 2000 between the ex parte Applicant (herein after Applicant) and the Interested Party, the Tribunal awarded the Interested Party the disputed land. It is further averred that the Tribunal was not properly constituted as the dispute was heard by four elders among them one George N. Mbuli who was not a gazzetted elder. The Ex parte Applicant also complained that the boundary was not fixed by the elders but by the Interested Party in the Applicant’s absence.
3. The application is opposed by the Interested Party as per the replying affidavit sworn on 31/10/2008. According to the Interested Party, the proceedings of the Land Disputes Tribunal were conducted regularly by a panel of three elders who were gazzetted. That the Tribunal was within its mandate to determine the boundary dispute.
4. The application was canvassed by way of written submissions which I have duly considered.
5. The proceedings before the Land Disputes Tribunal reflects the elders who constituted the same as follows:-
Mr Paul K. Munyalo
Paul M. Mutinda
George N. Mbuli
William M. Kisamwa
The Tribunal’s decision was then signed by three of the elders except Mr George N. Mbuli.
6. The Tribunal’s composition contravened section 4 (2) of the Land Disputes Tribunal Act which provides as follows:-
“4 (2) Each Tribunal shall consist of-
a. a chairman who shall be appointed from time to time by the District Commissioner from the panel of elders appointed under section 4; and
b. either two or four elders selected by the District Commissioner from a panel of elders appointed under section 5. ”
7. The inclusion of Mr George N. Mbuli whose name does not appear as a gazetted elder for Kitui District as per Gazette Notice No. 5523 of 05. 11. 1993 contravened section 5 (1) of the Land Disputes Tribunal Act which provides as follows:-
“The Minister shall, by notice published in the Gazette, appoint a panel of elders for each registration district.”
8. The Tribunal in its decision awarded the disputed land to the Interested Party, Kyalo Paul. This was a decision on ownership of land. The decision was outside the mandate of section 3 (1) of the Land Disputes Tribunal Act which provides as follows:-
“3. (1) Subject to this Act, all cases of a civil nature involving a dispute as to-
a. the division of, or the determination of boundaries to land, including land held in common;
b. a claim to occupy or work land; or
c. trespass to land.”
9. The Tribunal in its letter dated 19/9/2001 addressed to the parties allowed a third party described as the “bearer” of the letter to mark the boundary path. There is no provision in the Land Disputes Tribunal Act for the elders to delegate their responsibilities. There is no record of any proceedings to show how the boundary was fixed. This gives credence to the contention by the Applicant that he was not present when the boundary was marked. This further connotes failure to observe the rules of natural justice.
10. With the foregoing, the application has merits and I allow the same as prayed. Due to the circumstances of this case, each party to meet own costs.
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B. THURANIRA JADEN
JUDGE
Dated and delivered at Kitui this 12thday ofJune2014.
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B. THURANIRA JADEN
JUDGE