[2009] KEHC 293 (KLR)
The court found that the Land Disputes Tribunal acted outside its statutory jurisdiction by ordering the transfer of registered land, as its powers under section 3(1) of the Land Disputes Tribunals Act do not extend to determining ownership or nullifying title deeds. The tribunal's award and its adoption by the...
Source-derived case information.
- Citation
- [2009] KEHC 293 (KLR)
- Parties
- Applicant: Republic; Respondent: Land Disputes Tribunal Committee (Masaba Division) Kuria; Respondent: The Resident Magistrate’s Court at Kehancha; Interested Party: Nchagwa Mwita Burure; Ex Parte Applicant: Mwita Chacha Maswi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 52 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- Application allowed. Orders of certiorari and prohibition granted.
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Land Ownership Disputes, Tribunal Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Land Disputes Tribunal Committee (Masaba Division) Kuria
Respondent
The Resident Magistrate’s Court at Kehancha
Respondent
Nchagwa Mwita Burure
Interested Party
Mwita Chacha Maswi
Ex Parte Applicant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to determine ownership and order transfer of registered land.
- 2 Whether the adoption of the tribunal's award by the Resident Magistrate's Court was lawful.
- 3 Whether orders of certiorari and prohibition should issue to quash and restrain enforcement of the tribunal's decision.
Ratio Decidendi
The court found that the Land Disputes Tribunal acted outside its statutory jurisdiction by ordering the transfer of registered land, as its powers under section 3(1) of the Land Disputes Tribunals Act do not extend to determining ownership or nullifying title deeds. The tribunal's award and its adoption by the Resident Magistrate's Court were therefore unlawful. The applicant, as the registered proprietor, was entitled to orders of certiorari to quash the tribunal's proceedings and decision, and prohibition to restrain further action based on the unlawful award. The absence of opposition from the respondents or interested party further supported the grant of the orders sought.
Court Disposition
Application allowed. Orders of certiorari and prohibition granted.
Orders
- An order of certiorari is issued to quash the proceedings and decision of the Land Disputes Tribunal Committee (Masaba Division) Kuria in Land Dispute case No. 12 of 2008 and the adoption proceedings by the Resident Magistrate’s Court at Kehancha.
- An order of prohibition is issued restraining the Land Disputes Tribunal Committee (Masaba Division) Kuria from hearing or dealing with the issue of ownership of land parcel No. BUGUMBE/MABERA/205.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Miscellaneous Civil Application 52 of 2008
IN THE MATTER OF APPLICATION BY MWITA CHACHA MASWI TO APPLY FOR JUDICIAL REVIEW (CERTIORARI AND PROHIBITION)
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL COMMITTEE (MASABA DIVISION) KURIA
AND
IN THE MATTER OF THE RESIDENT MAGISTRATE’S COURT AT KEHANCHA
AND
IN THE MATTER OF KEHANCHA RESIDENT MAGISTRATE’S LAND DISPUTE’S TRIBUNAL CASE NO. 23 OF 2008
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL COMMITTEE MASABA DIVISION BUGUBE/MASABA/205 OF 29/04/05 CASE NO. 12
BETWEEN
REPUBLIC ………………………………………….. APPLICANT
VERSUS
LAND DISPUTES TRIBUNAL COMMITTEE
(MASABA DIVISION) KURIA …………… 1ST RESPONDENT
THE RESIDENT MAGISTRATE’S COURT
AT KEHANCHA …………………………….. 2ND RESPONDENT
AND
NCHAGWA MWITA BURURE ……….......... INTERESTED PARTY
EX- PARTE
MWITA CHACHA MASWI
RULING
The ex parte applicant sought an order of certiorari to remove into this court for purpose of quashing the proceedings and decision of the 1st respondent in its Land Dispute case No. 12 of 2008 and adoption proceedings thereof by the second respondent.
He also sought an order of prohibition to prohibit the 1st respondent from hearing or dealing with the issue of ownership of land parcel No. BUGUMBE/MABERA/205,hereinafter referred to as “the suit land”, and a further order to prohibit the second respondent from enforcing the 1st respondent’s decision relating to the suit land.
The applicant is the registered proprietor of the suit land. He was registered as the proprietor thereof on 30th September, 1974 and on 22nd May, 1978 he was issued with a title deed. That notwithstanding, in 2008 the interested party filed a case before the 1st respondent claiming that he was the owner of the suit land.
The 1st respondent heard the case and in its award delivered on 11th April, 2008 ordered that three quarters of the suit land be transferred to the interested party.
The 1st respondent forwarded its decision to the 2nd respondent for adoption which was done on 9th October, 2008.
The applicant contended that the 1st respondent acted outside its jurisdiction by ordering change of ownership of a parcel of land that was registered. That is true. The 1st respondent’s jurisdiction is limited by the provisions of section 3 (1) of the Land Disputes Tribunals Act. Such a tribunal cannot purport to nullify a title deed. If the interested party verily believed that he had a valid claim over the suit land, he ought to have filed his case before the High Court.
The respondents and the interested party were served with this application but none of them contested the same.
The orders sought are merited and I grant the same. The 1st respondent and the interested party shall bear the costs of this application.
DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF DECEMBER, 2009.
D. MUSINGA
JUDGE.
16/12/2009
Before D. Musinga, J.
Mobisa – cc
N/A for the applicant
N/A for the respondent
Court:Ruling delivered in open court on 16th December, 2009.
D. MUSINGA
JUDGE.