[2014] KEHC 219 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

E & L JUDICIAL REVIEW APPLICATION NO. 56 OF 2011

IN THE MATTER OF AN APPLICATION BY NCHAMA CHACHA NYARUNGU FOR JUDICIAL REVIEW IN THE NATURE OF CERTIORARI

AND

IN THE MATTER OF THE LAND DISPUTES TRIBUNAL ACTNO.18 OF1990 (NOW REPEALED)

AND

IN THE MATTER OF KURIA WEST DISTRICT (MASABA DIVISION) LAND DISPUTES TRIBUNAL

AND

IN THE MATTER OF SENIOR RESIDENT MAGISTRATE’S COURT AT KEHANCHA

BETWEEN

REPUBLIC……………..……………….…………………...………APPLICANT

VERSUS

KURIA WEST DISTRICT (MASABA DIVISION)

LAND DISPUTES TRIBUNAL………….....................….1STRESPONDENT

THE SENIOR RESIDENT MAGISTRATE’S COURT

AT KEHANCHA……………….…………….......……….…2NDRESPONDENT

AND

1. ZACHARIA MWIKWABE MAGIGE

2. THOMAS MURIMI MAGIGE……………........….. INTERESTED PARTIES

EXPARTE

NCHAMA CHACHA NYARUNGU

JUDGMENT

1. The ex parte applicant, Nchama Chacha Nyarungu(hereinafter referred to only as “the applicant”) brought the present application dated 30th May, 2011 pursuant to leave that was granted by this court on 25th May, 2011. The application was brought on the grounds set out in the verifying affidavit and supporting affidavit of the applicant sworn on 25th May, 2011, and 30th May, 2011 respectively and the Statement of facts dated 25th May, 2011. The application sought the following reliefs;

i. An order of certiorari to remove into this court and quash the proceedings and award of the 1strespondent dated 8th March, 2011 made in Land Disputes Tribunal Case No. 19 of 4/10/2010 and the judgment and/or the decision of the 2nd respondent made in Kehancha SRM LDT. No. 2 of 2011 on 5th April, 2011 adopting the said proceedings of the 1st respondent that concerned LR No. Bugumbe/Mabera/518 (hereinafter referred to as “the suit property”);

ii. The costs of the application to be paid by the interested parties;

iii. Any other or further orders as the court may deem fit to grant.

2. According to the affidavits filed by the applicant in support of the application referred to hereinabove, the applicant was at all material times occupying a portion of the suit property measuring 8 acres. The said portion of the suit property was purchased by the applicant from the 2nd interested party sometimes in the year 1986. The suit property was at all material times registered in the names of the 2nd interested party and one, Mangare Magige (deceased). Sometimes in the month of October, 2010, the 1st interested party lodged a claim against the 2nd interested party with the 1strespondent over the suit property. The 1st interested party claimed that he was entitled to a portion of the suit property and that the 1st respondent should assist him and the 2nd interested party who is his brother in sub-dividing the suit property between them. The 2nd interested party did not object to the 1st interested party’s claim before the tribunal and the relief that he sought. The 1st interested party’s claim was however objected to by the applicant herein who contended that he had purchased a portion of the suit property measuring 8 acres and as such his interest in the suit property should be taken care of by the 1st respondent while considering the 1st interested party’s request for the sub-division of the suit property. The 2nd interested party admitted before the 1st respondent that he had sold his share of the suit property to the applicant and expressed to the 1st respondent his wish to have the applicant remain in occupation of the said portion of the suit property. The 1st interested party however did not accept the applicant’s claim to a portion of the suit property.

3. The 1st respondent heard the two interested parties and the applicant together with their witnesses and delivered its decision and/or award on the 1stinterested party’s claim against the 2nd interested party on 8th March, 2011. In its decision, the 1st respondent held that the 1st and 2nd respondents were the beneficiaries of the suit property and that they should have the suit property divided between the two of them before the applicant who claimed to be a purchaser of a portion of the suit property can be allowed to put forward his claim. The 1st respondent ordered that the suit property be sub-divided into two equal portions between the 1st and 2nd interested parties. The 1st respondent made a further order that the applicant had not purchased a portion of the suit property from the 2nd interested party and as such he should vacate and move out of the portion of the suit property that was under his occupation. The 1st respondent’s said decision was lodged with the 2nd respondent under the provisions of section 7 of the Land Disputes Tribunals Act, No. 18 of 1990 (now repealed) for adoption as a judgment of the courtand the same was adopted as such on 5th April, 2011 and adecree issued on 6th April, 2011 for execution.The applicant was aggrieved with the said decision of the 1st respondent and its adoption by the 2nd respondent as a judgment of the court and decided to bring these proceedings to challenge the same.

4. The grounds on which the application was brought;

In summary, the applicant has challenged the said decision of the 1st respondent and its adoption by the 2nd respondent as a judgment of the court on the following main grounds;

i. that the 1st respondent had no jurisdiction to entertain the dispute that arose between the interested partieson one handand the applicant on the other hand as it concerned title and/or ownership of the suit property;

ii. that the decision of the 1st respondent was illegal,null and void ; and

iii. that the 2ndrespondent had no jurisdiction to adopt the said decision of the 1strespondent as a judgment of the court and as such the purported adoption of the same was similarly illegal, null and void.

5. The applicant’s application was opposed by the interested parties. The respondents were served with the application but did not oppose the same. The interested parties did not file a replying affidavit or grounds of opposition to the application but appointed an advocate who appeared at the hearing of the application. When the application came up for hearing on 5th December, 2013, the advocates for the parties agreed to argue the same by way of written submissions. The applicant filed his submissions on 20thFebruary, 2014 while the interested parties filed their submissions on 3rd March, 2014. I have considered the applicants’ application, the statutory statement andthe affidavits filed in support thereof. I have also considered the written submissions filed by the advocates for the applicant and the interested parties and the authorities cited in support thereof. I am of the opinion that the main issues that present themselves for determination in this application are as follows;

i. Whether the 1strespondent had jurisdiction to determine the dispute that was referred to it by the 1stinterested party which involved the 2nd interested party and the applicant and to make the decision complained of?

ii. Whetherthe1strespondent’s decision aforesaid was valid?

iii. Whether the 2ndrespondent had jurisdiction to adopt the 2nd respondent’s decision aforesaid as a judgment of the court?

iv. Whether the applicantis entitled to the reliefs sought against the respondents?

6. I am in agreement with the applicant’s submission that the 1strespondent acted outside its jurisdiction when it entertained the 1stinterested party’s claim against the 2nd interested party and the applicant. As submitted by the applicant’s advocates, the 1st respondent was established under the Land Disputes Tribunals Act, No.18 of 1990 (now repealed) (hereinafter referred to only as “the Act”). The powers of the 1strespondent wereclearly spelt out in the said Act. The 1st respondent could not exercise or assume powers outside those conferred by the Act. Section 3(1) of the Act that the applicant has referred tosets out the disputes over which the 1strespondent had jurisdiction as follows; “…………………..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.”

7. It is clear from the foregoing that the 1st respondent did not have jurisdiction to determine disputes over ownership and/or title to land. The 1st respondent did not therefore have the power to make a declaration that the 1st and 2nd interested parties were the beneficiaries of the suit property and that the same should be divided between them equally. The 1st respondent did not also have jurisdiction to order the applicant to vacate the suit property. I have noted from the record that one of the registered owners of the suit property is deceased and that he was not represented in the proceedings before the 1st respondent by a legal representative. I don’t think that the 1st respondent had jurisdiction to make an order for the distribution of a property of a deceased person in respect of whose estate no grant of letters of administration had been obtained. Such move was contrary to the provisions of section 45 of the Law of Succession Act, Cap 160 Laws of Kenya. Jurisdiction of a court or tribunal is of paramount importance. In fact, it has been said to be everything and without it a court or tribunal must lay down its tools. Jurisdiction cannot be assumed neither can it be conferred by agreement.

8. As was stated in the case of Desai-vs-Warsama (1967)E.A.351, no court can confer jurisdiction upon itself and where a court assumes jurisdiction and proceeds tohear and determine a matter not within its jurisdiction, the proceedings and the determination are a nullity. Having come to the conclusion that the 1st respondent had no jurisdiction to entertain the claim that was brought before it by the 1st interested party, it is my further finding that the proceedings before the 1st respondent and its decision made on 8th March, 2011 were all nullities.If the said decision of the 1st respondent was a nullity as I have held, I am of the opinion that it was not open to the 2nd respondent to adopt it as a judgment of the court on 5th April, 2011. If any authority is required to support that position, I would refer to the case of Macfoy-vs-United Africa Co. Ltd.(1961) 3 All E.R 1169, in which Lord Denning stated as follows concerning an act which is a nullity at page 1172;

“if an act is void, then it is in law a nullity. It is notonly bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the Court to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”.

9. I am of the opinion that since the decision of the 1st respondent was a nullity, there was nothing in law that could be filed before the 2nd respondent for adoption as a judgment of the court. Such judgment would equally be a nullity. I am of the view that, Section 7 of the Act pursuant to which the decision of the 1st respondent was lodged with the 2nd respondent for adoption envisaged a lawful decision by the 1st respondent. The 2nd respondent had no jurisdiction under section 7 of the Act aforesaid to adopt annul and void decision by the 1st respondent. Since the decision of the 1st respondent was a nullity for want of jurisdiction, there was nothing, on the basis of which the 2nd respondent could enter judgment and issue a decree that was issued on 6th April, 2011. The disposal of this issue brings me to the last issue namely, to whether this is an appropriate case to grant the orders of certiorari sought by the applicant. This court has power under section 13(7) (b) of the Environment and Land court Act, 2011 to grant the prerogative order sought.

10. As I have already concluded herein above, the 1st and 2nd respondents acted in excess of the jurisdiction conferred upon them by law. Their decisions were therefore nullities. The decisions of the 1st and the 2nd respondents are liable to review by this court. I am in agreement with the submission by the advocates for the interested parties that the order of certiorari sought by the applicant is discretionary and that even where conditions for grant of such order are met the court can still decline to grant the same. As I have stated above, the interested parties did not file a replying affidavit in response to the application herein. The interested parties have not therefore brought any material before me that would have persuaded me not to exercise my discretion in favour of the applicant. The interested parties have also contended that the applicant was not a party to the case before the 1st respondent and as such he has no business challenging the decision of the 1st respondent in these proceedings. A perusal of the proceedings of the 1st respondent leaves no doubt that the 1st interested party’s claim was actually directed against the applicant. There was no dispute at all between the 1st and 2nd interested party that could have been taken before the 1st respondent for determination. The 1st respondent went to great length to inquire from the 1st and 2nd respondent as to why they had come before the 1st respondent as it appeared that they had no dispute between them.

11. It is not true therefore that the applicant was merely a witness in the dispute before the 1st respondent. I wonder whose witness he was and why an order was made against him in the proceedings if he was merely a witness. The applicant was clearly made a party to the proceedings and orders were made against him. The applicant had every right to challenge the said orders by way of an application for judicial review as he has done herein. I am satisfied that this is an appropriate case to grant the orderssought by the applicant. The applicants’ Notice of Motion application dated 30th May, 2011is in my view well merited. The same is hereby allowedin terms of prayer 1thereof.The applicant shall have the costs of the application to be paid by the interested parties.

Dated, signed and delivered at Kisii this 5th day of December, 2014.

S. OKONG’O

JUDGE

In the presence of:-

Mr. Abisai for the Applicant

N/A for the Respondents

N/A for the Interested parties

Mr. Mobisa Court Clerk

S. OKONG’O

JUDGE