[2009] KEHC 312 (KLR)
The court held that the Marani Land Disputes Tribunal acted outside its statutory jurisdiction by entertaining and determining a claim of ownership over registered land, which is expressly excluded from its mandate under section 3(1) of the Land Disputes Tribunal Act. The ex parte applicant's title, having been...
Source-derived case information.
- Citation
- [2009] KEHC 312 (KLR)
- Parties
- Applicant: Republic; Respondent: Marani Land Disputes Tribunal; Respondent: The Chief Magistrate’s Court at Kisii; Respondent: Richard Makori Nyakundi; Applicant: Francis Omwenga Obonyo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 3 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Judicial Review Motion for Certiorari
- Outcome
- application allowed
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Registered Land Title, Judicial Review Certiorari, Customary Law and Land, Succession and Land Rights
- 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
Republic
Applicant
Marani Land Disputes Tribunal
Respondent
The Chief Magistrate’s Court at Kisii
Respondent
Richard Makori Nyakundi
Respondent
Francis Omwenga Obonyo
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Judicial Review Motion for Certiorari
Legal Issues
- 1 Whether the Marani Land Disputes Tribunal had jurisdiction to determine a claim of ownership over registered land.
- 2 Whether the Tribunal's decision and subsequent adoption by the Chief Magistrate's Court were nullities due to lack of jurisdiction.
- 3 Whether the ex parte applicant's title, obtained through succession, could be challenged before the Tribunal.
Ratio Decidendi
The court held that the Marani Land Disputes Tribunal acted outside its statutory jurisdiction by entertaining and determining a claim of ownership over registered land, which is expressly excluded from its mandate under section 3(1) of the Land Disputes Tribunal Act. The ex parte applicant's title, having been obtained through confirmed succession proceedings, was absolute and indefeasible under the Registered Land Act. Any challenge to such title should have been pursued through the mechanisms provided under the Law of Succession Act, not before the Tribunal. Consequently, both the Tribunal's proceedings and award, as well as their adoption by the Chief Magistrate's Court, were...
Court Disposition
application allowed
Orders
- The proceedings and award of the Marani Land Disputes Tribunal in Land Disputes Case No. 9 of 2004 are quashed.
- The adoption of the Tribunal's award by the Chief Magistrate’s Court at Kisii is quashed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Miscellaneous Application 3 of 2006
REPUBLIC………………………………………………………APPLICANT
-VERSUS-
MARANI LAND DISPUTES TRIBUNAL…..…………1ST RESPONDENT
THE CHIEF MAGISTRATE’S COURT AT KISII……2ND RESPONDENT
RICHARD MAKORI NYAKUNDI…...…………………3RD RESPONDENT
AND
FRANCIS OMWENGA OBONYO……........…………………….EXPARTE
RULING
Theexparteapplicant is the registered proprietor of land parcel no. West Kitutu/Bokingoina/1559 which measures about 1. 2. Hectares. The 3rd respondent lodged a claim against him in regard to the land with the 1st respondent. This wasLand Disputes Case no. 9 of 2004 at Marani. The Tribunal heard the claim
between the parties and decided that theexparteapplicant transfers all that land to the 3 rd respondent. The award was filed at the Chief magistrate’s Court at Kisii ( 2nd respondent) for adoption and it was at that point that theexparteapplicant sought, and obtained , leave to bring this judicial review motion for an order of Certiorari to remove into this court and quash the proceedings and decision of the 1st and 2nd respondents. The application was on the ground that the Tribunal had exceeded its jurisdiction provided bysection 3(1) of the Land DisputesTribunal Act(no. 18 of 1990)when it heard and determined the dispute the way it did .
The chairman of the Tribunal swore a replying affidavit in which he claimed they had jurisdiction to hear and determine the dispute which, according to him, was a customary law claim.
This was registered land and the provision ofsections 27and 28 of the Registered land Act (Cap 300) gave theexparteapplicant absolute and indefeasible title. Customary law was extinguished by the registration, unless the 3rd respondent’s claim was noted as an overriding interest or he had a claim of a beneficiary under a trust.
The proceedings before the Tribunal revealed theexparteapplicant had obtained title to the land following succession proceedings in Cause no. 294 of 2002 in the High Court at Kisii. The grant was confirmed to him as absolute owner of the land. If the 3 rd respondent was aggrieved by the grant he ought to have sought its revocation or annulment undersection 76of the Law ofSuccession Act (Cap. 160),but not go to complain to the Tribunal.
Section 3(1) of the Land Disputes Tribunal Actdid not allow the Tribunal to entertain the 3rd respondent’s claim of ownership against theexparteapplicant’s registered right.(SeeBeatriceM’Marete.V. the Republic and others, Civil Appeal no. 259 of 2000at Nyeri). It follows that the proceedings and award were a nullity. The same for the proceedings now before the 2nd respondent.
The application is allowed with costs.
Dated, signed and delivered at Kisii this 1st Day of February, 2009.
A.O.MUCHELULE
JUDGE
1/2/2010
Before A.O.Muchelle-J
Court clerk-Bibu
Mr. Ombachi for exparte applicant
Court–Ruling in open court
A.O.MUCHELULE
JUDGE
1/2/2010