[2009] KEHC 2238 (KLR)
The court found that while the Tribunal's award regarding the occupation and division of land between the ex-parte applicant's wives was within its jurisdiction, the handwritten addition directing that the Title Deeds should bear the names of the husband and Salome his wife was not. This addition, which was not...
Source-derived case information.
- Citation
- [2009] KEHC 2238 (KLR)
- Parties
- Applicant: Republic; Respondent: The Mwea Land Disputes Tribunal; Interested Party: Salome Wambere; Applicant: Michael Kithaka
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 36 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Judicial Review Application
- Outcome
- application allowed; award quashed
- Judges
- J Karanja
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Certiorari, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Mwea Land Disputes Tribunal
Respondent
Salome Wambere
Interested Party
Michael Kithaka
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Judicial Review Application
Legal Issues
- 1 Whether the Mwea Land Disputes Tribunal had jurisdiction to order alteration or cancellation of a Title Deed.
- 2 Whether the award of the Tribunal, as read in Wang’uru R.M’s Court Arbitration Case No. 2/1996, should be quashed by certiorari.
Ratio Decidendi
The court found that while the Tribunal's award regarding the occupation and division of land between the ex-parte applicant's wives was within its jurisdiction, the handwritten addition directing that the Title Deeds should bear the names of the husband and Salome his wife was not. This addition, which was not countersigned or initialed, fundamentally altered the nature of the award and directed an act—alteration or cancellation of a Title Deed—that the Tribunal had no power to order under the Land Disputes Tribunal Act. As a result, the entire award was rendered a nullity for want of jurisdiction, and the court granted an order of certiorari to quash it.
Court Disposition
application allowed; award quashed
Orders
- The award of the Mwea Land Disputes Tribunal in Arbitration Case No. 176 of 1993, as read in Wang’uru R.M’s Court Arbitration Case No. 2/1996, is hereby quashed.
- Each party will bear its own costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISCELLANEOUS APPLICATION 36 OF 2008
REPUBLIC…………………………………………………………..APPLICANT
VERSUS
THE MWEA LAND DISPUTES TRIBUNAL………….......….RESPONDENT
AND
SALOME WAMBERE………………….........…………..INTERESTED PARTY
MICHAEL KITHAKA……………….............................………………EX PARTE
RULING
The Ex-parte applicant has moved this court by way of Judicial Review seeking an order of certiorari to remove into this court for purposes of its being quashed the Award of Mwea Land Disputes Tribunal’s Arbitration case No. 176 of 1993 ordering sub-division and transfer of parcels of land No. MUTIRA/KANGAI/212 and MUTIRA/KANGAI/242 which was read on 24/6/2008 in Wang’uru R.M’s Court Arbitration Case No. 2/1996.
I have considered very carefully the grounds on the face of the application, the statement of facts and the rival affidavits herein. I have also read through the proceedings and award of the Tribunal. I have also been informed by the provisions of the Land Disputes Tribunal Act and more particularly Section 3 thereof. Indeed the award at order No, 2 clearly states that the land should be sub-divided equally between the ex-parte applicant’s 2 wives but emphasized that the Title Deeds would remain in the names of the ex-parte applicant. Had the award stopped at that, I would not have interfered with the same as that would amount to“a claim to occupy or work land” which is clearly provided for under Section 3 (1) (b) of the land Disputes Tribunal Act. I nonetheless note that somebody added No. 4 which is handwritten in ink and stated that the Title Deeds should bear the names of “husband and Salome his wife” This addition is not countersigned or initialed. It nonetheless changes the entire purport of the award and hurls it outside the jurisdiction of the Land Disputes Tribunal Act. The Tribunal lacks jurisdiction to order the alteration of a Title Deed or to order the cancellation of the same. Order No. 4 directs such a cancellation or alteration of the Title Deed. This therefore makes the entire award a nullity for lack of jurisdiction.
For this reason, the said award calls for quashing. The Notice of Motion dated 10/3/2009 therefore succeeds. The same is allowed and the said award is called into this court and the same is hereby quashed.
Each party will bear its own costs as they are members of the same family.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 27th day of\July 2009.
In presence of:- M/s Njeru for ex-parte applicant and both parties.
W. KARANJA
JUDGE