[2011] KEHC 3170 (KLR)
The court found that the Kaplamai Land Disputes Tribunal did not make any enforceable decision or order capable of being quashed, as it expressly declined jurisdiction over both the contract and succession issues. The tribunal merely directed the parties to pursue their remedies in the appropriate forums and did not...
Source-derived case information.
- Citation
- [2011] KEHC 3170 (KLR)
- Parties
- Applicant: Republic; Respondent: Kaplamai Land Disputes Tribunal (Ben Simiyu, Zipporah Nyongesa, Zablon Atswenje); Respondent: Chief Magistrate, Kitale; Interested Party: Eliseba Jemenjo Keino; Exparte: Wilson Barngetuny
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 33 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Judicial Review Application for Certiorari
- Outcome
- application dismissed with costs to the interested party
- Legal Topics
- Jurisdiction of Tribunals, Judicial Review, Succession Matters, Natural Justice, Land Disputes, Certiorari
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kaplamai Land Disputes Tribunal (Ben Simiyu, Zipporah Nyongesa, Zablon Atswenje)
Respondent
Chief Magistrate, Kitale
Respondent
Eliseba Jemenjo Keino
Interested Party
Wilson Barngetuny
Exparte
Procedural Posture
Miscellaneous Application / Ruling on Judicial Review Application for Certiorari
Legal Issues
- 1 Whether the Kaplamai Land Disputes Tribunal had jurisdiction to determine matters relating to a deceased person's estate subject to succession proceedings.
- 2 Whether the tribunal acted in excess of its jurisdiction by addressing issues of contract.
- 3 Whether the rules of natural justice were observed by the tribunal.
Ratio Decidendi
The court found that the Kaplamai Land Disputes Tribunal did not make any enforceable decision or order capable of being quashed, as it expressly declined jurisdiction over both the contract and succession issues. The tribunal merely directed the parties to pursue their remedies in the appropriate forums and did not act in bad faith or outside the scope of the Land Disputes Tribunal Act. Since there was no substantive decision or order, the application for certiorari was unmeritorious and could not be granted. The applicant, having initiated the proceedings before the tribunal, could not now claim lack of jurisdiction as a basis for judicial review.
Court Disposition
application dismissed with costs to the interested party
Orders
- The application is dismissed.
- Costs awarded to the interested party.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA
AT KITALE.
MISC. CIVIL APPLICATION NO. 33 OF 2008.
REPUBLIC ............................................................................................................APPLICANT.
VERSUS
KAPLAMAI LAND DISPUTES TRIBUNAL COMPRISING OF:-
BEN SIMIYU)
ZIPPORAH NYONGESA) ................................................................ 1ST RESPONDENT.
ZABLON ATSWENJE)
CHIEF MAGISTRARTE, KITALE......................................................... 2ND RESPONDENT.
ELISEBA JEMENJO KEINO............................................................INTERESTED PARTY.
WILSON BARNGETUNY .....................................................................................EXPARTE.
R U L I N G.
1. The exparte applicant filed a notice of motion dated 19th May, 2008 seeking for an order of certiorari to remove to this court for purposes of quashing the decision by Kaplamai Land Disputes Tribunal in Tribunal Case No. 41 of 2007 which was adopted as judgment of the court in Kitale CM. Land Case No. 46 of 2007 on 25th June, 2007. This application is predicated on the grounds that the tribunal acted in contravention of the law. It had no jurisdiction to determine matters relating to a deceased person which are subject to succession proceedings. Moreover, the tribunal has no jurisdiction to determine matters touching on contract and finally the rules of natural justice were not observed by the tribunal.
2. These grounds giving rise to the relief sought by the exparte applicants are expounded in the statement in support of the application as well as the supporting affidavit sworn by Wilson Barngetuny on 19th May, 2008. According to the applicant, he obtained leave of this court on 29th April, 2008 to institute the judicial review proceedings. He annexed a copy of the award by Kaplamai Land Disputes Tribunal which was adopted and made the decree of the court.
3. This application was opposed. Mr. Chebii, learned counsel for the interested party submitted that the decision of the tribunal is legally sound because the claimant was directed to follow the issue of contract elsewhere as it was not a matter for the tribunal. It was further held that since the issues touched on the estate of a deceased person it was necessary for the objector to obtain the letters of administration. It is the expert applicant who had filed the matter before the tribunal thus it defeats logic that filed a matter before a tribunal that had no jurisdiction. It was further submitted the exparte applicant had filed another Miscellaneous Application No. 1043 of 2007 before the High Court, Nairobi over the same subject matter.
4. In considering the remedies sought, I have perused the award by the tribunal that was adopted and made the decree of the court on 25th June, 2007. I agree with counsel for the interested party that there is no decision capable of being implemented arising from the award made by the tribunal. The tribunal held that the issue of contract did not fall within their mandate. They also opined that if the objector had sold a portion of land belonging to the estate of a deceased person, that sale would be null and void. Accordingly, there is no decision capable of being quashed. There is no material before the court to show that the tribunal exercised its powers in bad faith or outside the Land Disputes Tribunal Acts. I see no reason to quash a decision by a Tribunal that has made no orders except to direct the claimant to pursue their remedies before the appropriate forums.
5. I find this application unmeritorious especially because it was filed by the same applicant who was the claimant before the land dispute tribunal where he sought remedies from a tribunal that he knew had no jurisdiction.
The application is dismissed with costs to the interested party.
Ruling read and signed this 25th day of March, 2011
M. KOOME.
JUDGE.