[2010] KEHC 30 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLENEOUS CIVIL APPLICATION NO. 374 OF 2010

IN THE MATTER OF:AN APPLICATION FOR ORDERS OF PROHIBITION AND CERTIORARI BY THE

REPUBLIC AGAINSTLAND DISPUTES TRIBUNAL, RUIRU AWARD IN CASE NO. LDT/O7/2010;

AND

IN THE MATTER OF:CHIEF MAGISTRATE’S COURT AT THIKA IN LAND CASE NO. 83 OF 2010

AND

IN THE MATTER OF:THE LAND DISPUTES TRIBUNAL ACT, NO. 18 OF 1990

AND

IN THE MATTER OF:THE REGISTERED LAND ACT, CAP 300 OF THE LAWS OF KENYA

BETWEEN

REPUBLIC ...............................................................................................................APPLICANT

AND

LAND DISPUTES TRIBUNAL ....................................................................1ST RESPONDENT

CHIEF MAGISTRATE COURT, THIKA.......................................................2ND RESPONDENT

AND

JOHN GATHUA.......................................................................................INTERESTED PARTY

KAMAU MUNDIA KARUGA ..............................................................EX PARTE APPLICANT

RULING

The ex parte applicant’s notice of motion seeks two main orders:

(a)An order of prohibition to prohibit the Chief Magistrate’s Court at Thika and Ruiru Land Disputes Tribunal from hearing and entertaining any further proceedings or issuing any further orders in Land Case No. 83 of 2010, Thika, and Ruiru LDT/07/2010, respectively.

(b)An order of certiorari to bring to this court and quash proceedings and award of the Ruiru Land Disputes Tribunal in respect of LDT/07/2010 and subsequent orders of Principal Magistrate’s Court at Thika made on 29th November, 2010 adopting the said award as judgment of the court and any other orders issued thereafter in the aforesaid case.

The application was made on the following grounds:

“(a) The applicant is the lawful and registered owner ofthe parcel of land No. RUIRU KIU BLOCK 2/4260.

(b) The Claimant JOHN GATHUA is the applicant’sbrother who filed a claim against the applicant in RUIRU Land Dispute Tribunal No. LDT/07/2010.

(c) The award was filed in court on 16th September 2010.

(d) After the dispute was heard the verdict was givenon 16th September 2010.

(e) On the 29th November 2010 the Chief MagistrateCourt confirmed the award that the claimant be given quarter of an acre from the suit land.

(f) The rules of natural justice at the hearing wereabsent at the Ruiru Land Dispute Tribunal.

(g) The Tribunal lacks jurisdiction under the law toentertain any proceedings relating to the Registered (land) under Registered Land Act. (Cap. 300) and especially to order for subdivision.

(h) There was no basis whatsoever for the tribunal toorder that my Land Parcel No. RUIRU KIU BLOCK 2/4260 be subdivided between me and my brother the claimant.

(i) The Chief Magistrate should not entertain any proceedings and make any orders for sub-division of the Land No. RUIRU KIU BLOCK 2/4260 pursuant to the Ruiru Land Tribunal Award.

(j) The applicant undertakes as to costs and will abide by each and all conditions that may be imposed by the courts.”

In his affidavit in support of the application, the ex parte applicant deposed that he is the registered proprietor of Land Parcel No. RUIRU KIU BLOCK 2/4260 hereinafter referred to as “the suit property”. He annexed thereto a copy of the Title Deed issued to him on 9th August, 1993 pursuant to the provisions of the Registered Land Act. The affidavit is a rehash of the aforesaid grounds.

The 1st and 2nd respondents did not file any replying affidavit. The interested party filed a replying affidavit and a preliminary objection. In his replying affidavit the interested party stated that all the rules of natural justice were duly observed by the tribunal and upon finalization of the hearing, the tribunal gave its award. The award, having been adopted as a judgment of the court and no appeal having been filed by the ex parte applicant, the tribunal’s decision is conclusive. In the circumstances, he added, this court has no jurisdiction to hear any appeal relating to the said dispute. The same arguments are contained in the preliminary objection

Parties filed their respective submissions which I have carefully considered.

The main issue for determination is whether the Land Disputes Tribunal had jurisdiction to hear the dispute over the suit land. Section 3(1) of the Land Disputes Tribunal Act sets out the powers of the tribunal. Its jurisdiction is limited to determining cases of a civil nature involving a dispute 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)a trespass to land.

The tribunal has no power to entertain disputes of ownership of registered land. See WAMWEA vs CATHOLIC DIOCESE OF MURANG’A REGISTERED TRUSTEES [2003] KLR 389.

It is trite law that any decision made by a court or quasi-judicial body which lacks jurisdiction is null and void. In MACFOY vs UNITED AFRICA LIMITED [1961] 3 All ER 1169Lord Denningstated:

“If an act is void, then it is in law a nullity and not amere irregularity. It is not only 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 more ado, though it is sometimes convenient to have the court 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.”

The tribunal’s decision, having been made without jurisdiction, was null and void and of no legal effect. It matters not whether it has been adopted by the 2nd respondent as a judgment of the court.

The interested party argued that since the ex parte applicant had not lodged any appeal within the given period of thirty days from the date of the said decision, the same is now final. He further stated that this court lacks jurisdiction to hear appeals from decisions of the Land Disputes Tribunal.

This court is not considering an appeal from the Land Disputes Tribunal. The ex parte applicant came to court by way of a judicial review. A party who is aggrieved by a decision made by a court which lacks jurisdiction may commence judicial review proceedings to quash the proceedings and the decision made by such a court or body. This is what the ex parte applicant did. Failure to exercise the right of appeal did not in any way amount to a waiver of the right to obtain judicial review.

If the interested party has any claim over the suit property, he should file a suit in a court of competent jurisdiction since it is a registered property.

For these reasons, the ex parte applicant’s application is allowed and the orders sought therein are granted. The interested party shall bear the costs of the application.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY, 2011.

D. MUSINGA

JUDGE

In the presence of:

Nazi – Court Clerk

Miss Namisi for the Interested Party

Mr. Karumba holding brief for Mr. Onyiso for the Respondent

No appearance for the Ex Parte Applicant