[2015] KEHC 5813 (KLR)
The court found that the Kisumu East District Land Disputes Tribunal acted without jurisdiction when it purported to award a quarter of the suit land to the interested party and appointed the ex parte applicant as caretaker of land he did not own. The tribunal's statutory mandate under Section 3(1) of the Land...
Source-derived case information.
- Citation
- [2015] KEHC 5813 (KLR)
- Parties
- Applicant: Maurice Otieno Oliech; Respondent: Kisumu East District Land Disputes Tribunal; Respondent: Hesborn Nyawara Ogada
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 12 of 2012
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- Application allowed. Order of certiorari granted. Each party to bear its own costs.
- Legal Topics
- Jurisdiction of Land Tribunals, Certiorari, Quashing of Tribunal Decisions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Maurice Otieno Oliech
Applicant
Kisumu East District Land Disputes Tribunal
Respondent
Hesborn Nyawara Ogada
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the Kisumu East District Land Disputes Tribunal had jurisdiction to award ownership of land to the interested party.
- 2 Whether the tribunal could appoint the ex parte applicant as caretaker of land he did not own.
- 3 Whether the tribunal's decision was made without hearing the registered owner.
Ratio Decidendi
The court found that the Kisumu East District Land Disputes Tribunal acted without jurisdiction when it purported to award a quarter of the suit land to the interested party and appointed the ex parte applicant as caretaker of land he did not own. The tribunal's statutory mandate under Section 3(1) of the Land Disputes Tribunal's Act, No.18 of 1990, does not extend to conferring ownership or appointing caretakers. Furthermore, the tribunal made orders affecting the registered owner, Daudi Osue Nyawara, without hearing him, which was procedurally improper. As a result, the court granted an order of certiorari to quash both the tribunal's decision and the consequential judgment of the Chief...
Court Disposition
Application allowed. Order of certiorari granted. Each party to bear its own costs.
Orders
- An order of certiorari is granted to quash the decision of Kisumu East District Land Disputes Tribunal dated 27/10/2011 in Tribunal case No.07 of 2011.
- An order of certiorari is granted to quash the decision and judgment of Kisumu Chief Magistrate's Court dated 3/2/2012 in Kisumu CMC Land case No.95 of 2011.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
JUDICIAL REVIEW NO.12 OF 2012
REPUBLIC
EXPARTE: MAURICE OTIENO OLIECH...............................PLAINTIFF
VERSUS
KISUMU EAST DISTRICT LAND DISPUTES
TRIBUNAL & ANOTHER....................................................DEFENDANTS
J U D G M E N T
This judgment relates to land parcel No. KISUMU/KAWINO/702 (also known as Land Parcel No.702 Kawino adjudication Section), suit land hereafter. The suit land is registered in the name of DAUDI OSUE NYAWARA - now presumed dead or lost.
The suit land was subject of a dispute at KISUMU EAST LAND DISPUTES TRIBUNALvide case No.07/2011. The dispute was between the Exparte Applicant herein – MAURICE OTIENO OLIECH– and the interested party – HESBORN NYAWARA OGADA. The two parties were claimant and objector respectively in the dispute. It seems clear that the Exparte Applicant wanted the interested party ordered to vacate the suit land, something the tribunal did not do.
Instead, the tribunal ordered that the suit land be sub-divided with ¼ portion to belong to the interested party while the exparte Applicant was to be a caretaker of the remaining ¾ portion.
The Exparte applicant felt aggrieved and came to Court vide this suit for review. He argues that the tribunal had no jurisdiction to make that order. He also argues that the tribunal made an order against Daudi Osue Nyawara, the registered owner, without hearing him. Yet another complaint was that the Exparte Applicant himself could not be made a caretaker as he is not the registered owner. He wouldn't, he said, be in a position to comply with such order.
All this led the Exparte Applicant to apply for the following orders:
(a) That this honourable court be pleased to grant to the applicant an order of Certiorari to remove to the High Court and quash (i) the decision of KISUMU EAST DISTRICT LAND DISPUTES TRIBUNAL dated 27/10/2011 in Tribunal case No.07 of 2011, as well as (ii) the decision and judgment of Kisumu Chief Magistrate's Court dated 3/2/2012 in Kisumu CMC Land case No.95 of 2011, pursuant to which one quarter of the suit land was awarded to the interested party.
(b) Costs of this application plus interests be provided for.
Both the respondents and the interested party were served. Both indicated that they were not opposing the application herein, with the respondent doing so on 23/9/2013 and the interested party doing so also on the same day. This therefore is a matter without a contest.
Orengo for Exparte Applicant filed submissions on 23/9/2013 and amplified what the application contain. In addition, he availed the following decided cases to the court for guidance.
(a) ASMAN MASOBA WEPUKHULU &WYCLIFFE BARASA VS FRANCIS WAKWABUBI BIKETI: KISUMU CA NO.157/2001.
(b) JOTHAM AMUNANI VS THE CHAIRMAN, SABATIA DIVISION LAND DISPUTE'S TRIBUNAL & ENOS KENYANI AMUMAUI: KISUMU: CA NO.256/02.
(c) JOSEPH OKELLO ONDEWE VS ZADOCK OKUMU OMBAKA: KISUMU HCCA NO.164/03.
In all these cases the land tribunal's decisions and/or the decisions of the court adopting them, were quashed because the deciding bodies acted without or in excess of jurisdiction.
The jurisdiction of the tribunal is provided for in Section 3(1) of the Land Disputes Tribunal's Act, No.18/1990 which provides:
“3(1) Subject to this Act, all cases of 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
Shall be heard and determined by a tribunal established under S.4.
The tribunal had no inherent jurisdiction. Its entire jurisdiction was as contained in section 3(1) above. When it purported to award ¼ of the suit land to the interested party, it was obviously acting without jurisdiction. It had no business at all making a decision that conferred ownership on the interested party. It also had no business appointing the Exparte Applicant a caretaker of land he did not own. In fact the tribunal's jurisdiction did not include appointing caretakers.
I think it is because of all this that both the respondent and the interested party saw sense in not opposing the suit.
The application herein is therefore allowed and an order of CERTIORARI is granted as asked for. But when it comes to costs, it is worthy noting that it is the Exparte Applicant who dragged the interested party to the tribunal. He is also the one who has brought him there. The Exparte Applicant will not be awarded costs. Let each side therefore bear its own costs.
A.K. KANIARU – JUDGE
19/3/2015
19/3/2015
Before A.K. Kaniaru – Judge
Diang'a G. - Court clerk
No party present
M/s Aliongo (AG's office) for Respondents
Other counsels absent
Interpretation: English/Kiswahili
COURT:There is a Notice dated 10/3/2015 for delivery of the judgment herein.
Judgment is read and delivered in open COURT.
Right of Appeal – 30 days.
A.K. KANIARU – JUDGE
19/3/2015