[2011] KEHC 858 (KLR)
The court found that the Land Dispute Tribunal acted ultra vires its statutory mandate by purporting to determine ownership and order rectification of the land register for parcel Kisumu/Nyalenda “B”/2088. Section 3(1) of the Land Disputes Tribunal Act restricts the Tribunal's jurisdiction to matters of division,...
Source-derived case information.
- Citation
- [2011] KEHC 858 (KLR)
- Parties
- Applicant: Republic; Respondent: Land Dispute Tribunal; Respondent: Chief Magistrate; Interested Party: Joash Eliakim Osewe
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 34 of 2009
- Procedural Posture
- Judicial Review / Ruling on Substantive Motion
- Outcome
- Application allowed in part; orders of certiorari and prohibition granted as specified.
- Judges
- HK Chemitei
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Rectification of Land Register, Ultra Vires Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Land Dispute Tribunal
Respondent
Chief Magistrate
Respondent
Joash Eliakim Osewe
Interested Party
Procedural Posture
Judicial Review / Ruling on Substantive Motion
Legal Issues
- 1 Whether the Land Dispute Tribunal had jurisdiction to determine ownership and order rectification of the land register for parcel Kisumu/Nyalenda “B”/2088.
- 2 Whether the decisions of the Tribunal and the Chief Magistrate should be quashed by certiorari.
- 3 Whether prohibition should issue against the land registrar and the interested party regarding the suit land.
Ratio Decidendi
The court found that the Land Dispute Tribunal acted ultra vires its statutory mandate by purporting to determine ownership and order rectification of the land register for parcel Kisumu/Nyalenda “B”/2088. Section 3(1) of the Land Disputes Tribunal Act restricts the Tribunal's jurisdiction to matters of division, boundaries, occupation, and trespass, and does not extend to ownership or rectification of title. The Tribunal's decision, and the subsequent adoption by the Chief Magistrate, were therefore nullities for want of jurisdiction. The court granted orders of certiorari to quash both the Tribunal's and Magistrate's decisions, and prohibition against the land registrar registering the...
Court Disposition
Application allowed in part; orders of certiorari and prohibition granted as specified.
Orders
- Order of certiorari issued to quash the decision of the Kisumu East/West Land Dispute Tribunal No. 34 of 2009 dated 22nd October 2009 and the magistrate's decision of 11th November 2009 in CMCC Land Case No. 74 of 2009.
- Order of prohibition issued restraining the land registrar Kisumu East/West District from registering Michael Otieno Majimba as proprietor of Kisumu/Nyalenda “B”/2088.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
JUDICIAL REVIEW NO. 34 OF 2009
REPUBLIC ……………………………….....................................………………….APPLICANT
VERSUS
LAND DISPUTE TRIBUNAL …………….......................................………….1ST RESPONDENT
CHIEF MAGISTRATE …………………….........................................……….2ND RESPONDENT
AND
JOASH ELIAKIM OSEWE……………….............................................……INTERESTED PARTY
RULING
The Applicant brought this application dated 7th December 2009 praying for the following orders:-
(1)That this court be pleased to grant order of Certiorari to remove into this court the decision of the Kisumu East /West Land Dispute Tribunal No. 34 of 2009 dated 22nd October 2009 to quash the same and also quash magistrate decision of 11th November 2009 made in CMCC Land case No. 74 of 2009 with a view to quashing the same.
(2)That the court be pleased to prohibit the land registrar Kisumu East /West District from registering the interested party herein Michael Otieno Majimba as the proprietor of land parcel number Kisumu / Nyalenda “B”/ 2008.
(3)That the court further be pleased to issue prohibition orders stopping the said respondent from taking over, occupying using and or generally using the land parcel number Kisumu / Nyalenda “B”/ 2088 in the manner inconsistent with the proprietary rights of the applicant.
(4)That the costs of this application be provided for.
The said application is supported by the affidavit of Elphas Muzotso Lugose.
I have read the said application together with the attendant documents. The 1st respondent on 15th October 2009 arrived on the following verdict-
“This Land Dispute Tribunal sitting at Kisumu East District Commissioner Boardroom believes beyond any reasonable doubt that pastor Joash Eliakim Otieno Osewe used undue influence and made Michael Otieno Majimba transfer to him Kisumu / Nyalenda “B” / 2088 and we hereby order Kisumu District Land Registrar to cancel the name of Elphas Muzotso Lugose from title number Kisumu / Nyalenda “B” / 2088 and re-register the same title Kisumu /Nyalenda /”B”/ 2088 to Michael Otieno Majimba. Right of appeal is allowed within thirty (30) days from the date of this decision at the Provincial Commissioner Office Kisumu”.
The 1st respondent’s powers are fully donated by Section 3 (1) of the Land Disputes Tribunal Act which are
(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 Section 4.
I agree with the applicant’s counsel that the tribunal acted ultra vires they had no jurisdiction to determine the ownership of land parcel number Kisumu /Nyalenda “B” / 2088. Neither did it have the capacity to order the rectification of the register. There have been plethora of authorities from this court and the Court of Appeal over the same.
In the premises I shall grant prayers 1 and 2 of the applicant application dated 7th December 2009. The parcel therein should however be amended to read Kisumu /Nyalenda “B”/2088 and not Kisumu /Nyalenda “B” / 2008. I suppose this was a typing error. I shall not grant prayer 3. The applicant shall have the costs of this application.
Orders accordingly.
Dated, signed and delivered this 2nd day of November 2011.
H. K. CHEMITEI
JUDGE
HKC/aao