[2015] KEHC 6540 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

MISC. APPLICATION NO. 59 OF 2009

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

KIMININI L.D.T. :::::::::::::::::::::::::::::::::::::::::::::::::::::::: 1ST RESPONDENT

ENOCK NYUKURI :::::::::::::::::::::::::::::::::::::::::::::::::: INTERESTED PARTY

R U L I N G

The application vide a notice of motion dated 10th August, 2009, is for an order of certiorari to remove into this court and quash the decision of the Kiminini Land Disputes Tribunal which was adopted as a judgment of the court in Kitale CMLC No. 78 of 2008 on the 14th November, 2008. It is based on grounds that the proceedings and decision of the tribunal are a nullity for want of jurisdiction, that the applicant, Christopher Hamisi, was condemned unheard as he was not a party to the proceedings at the tribunal, that the interested party, Enock Nyukuri did not file and serve a statement of claim, on the applicant and had no 'locus-standi' or claim at the tribunal and that the tribunal did not give reasons for its decision.

These grounds are supported by the applicants' statement of particulars dated 9th April, 2009 and the averments contained in the supporting affidavit dated 10th August, 2009.

The interested party opposes the application on the basis of the grounds contained in his replying affidavit dated 27th January, 2010.

The first respondent, Kiminini Land Disputes Tribunal, and the second respondent, Chief Magistrate, Kitale, did not file any response to the application and hence, raised no objection thereto. The third respondent, the Estate of Jeoffrey K. Wabuge, was withdrawn from the case vide, a notice of withdrawal dated 28th May, 2014, filed by the applicant.

At the hearing of the application, the Learned Counsel,Mr. Samba, appeared for the applicant while learned counsel, Mr. Nyamu, appeared for the interested party.

The learned litigation counsel, M/s. Lurigu, appeared for the first and second respondent and confirmed their non-objection to the application.

Having heard the arguments advanced by counsels for the applicant and the interested party , the basic issues arising for determination are firstly, whether the first respondent tribunal had the necessary jurisdiction to deal with the matter and secondly, whether the interested party had the necessary “locus-standi” to bring the matter before the tribunal.

On the first issue, the jurisdiction of the tribunal was donated by Section 3 (1) of the then Land Disputes Tribunal Act (Cap 303 A), which provided that the cases which could be heard and determined by a tribunal included those relating to the division or the determination of boundaries to land including land held in common, claim to occupy or work land and trespass to land.

If therefore, the tribunal herein heard and determined a dispute other than that provided by the Act, it did so in excess of jurisdiction thereby rendering its proceedings and decision null and void “ab-initio”.

The proceedings and decision of the tribunal annexed to this application indicates that the dispute or claim was presented by the interested party against one Jeoffrey K. Wabuge. The applicant's name did feature in the proceedings but not the ultimate decision of the tribunal. He (applicant) was however, affected by the decision as he was the Christopher said to have purchased the land in dispute from the said Jeoffrey K. Wabuge, who had initially sold the same land to the Interested party. He (applicant) was thus possessed of the necessary “locus-standi”to bring this application before this court.

Apparently, the tribunal's proceedings indicate that it was deliberating on issues relating to the purchase of the disputed land by the interested party from Jeoffrey K. Wabuge. The dispute was in essence based on a contractual agreement between the two but was extended to the applicant simply because he purchased the same land from Jeoffrey K. Wabuge. It would appear that both the applicant and the interested party were “dubbed” by the vendor. The remedy therefore lay in damages for break of contract or in specific performance against the vendor. These could be availed by civil courts and not the land disputes tribunal which purported to allocate the land to the interested party upon payment of the alleged balance of the purchase price in the sum of Ksh. 40,000/=.

In as much as the dispute related to a contractual agreement on the sale of land, the tribunal clearly had no jurisdiction. It acted beyond its jurisdiction when it purported to adjudicate the dispute pitting the interested party and the said Jeoffrey K. Wabuge.

As regards the second issue for determination, the foregoing finding that the tribunal had no jurisdiction to deal with the material dispute, renders the issue irrelevant and inapplicable.

In the end result, this application is allowed to the effect that the decision of the material tribunal adopted as a judgment of the court in Kitale CMLC No. 78 of 2008 is hereby removed into this court and quashed.

The costs of the application shall be borne by the Interested party only.

Ordered accordingly.

[Read and signed this 17th day of February, 2015. ]

J.R. KARANJA.

JUDGE.