[2010] KEHC 1878 (KLR)
The court found that the claim before the Tribunal was statute barred, as the interested party admitted the boundary had not changed for 18 years, making the claim time-barred under the Limitation of Actions Act. Section 13(3) of the Land Disputes Tribunal Act prohibits tribunals from entertaining statute-barred...
Source-derived case information.
- Citation
- [2010] KEHC 1878 (KLR)
- Parties
- Applicant: Tabitha Wanjiku Nganga; Respondent: Nyandarua Olkalou Division Land Disputes Tribunal; Respondent: Nyeri Provincial Land Appeal Tribunal; Respondent: Nyahururu Principal Magistrate’s Court; Interested Party: Suleiman Mwihoti Kimunge
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 43 of 2009
- Procedural Posture
- Judicial Review / Ruling
- Outcome
- Application partly allowed.
- Legal Topics
- Jurisdiction of Land Tribunals, Limitation of Actions, Boundary Disputes, Certiorari Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Wanjiku Nganga
Applicant
Nyandarua Olkalou Division Land Disputes Tribunal
Respondent
Nyeri Provincial Land Appeal Tribunal
Respondent
Nyahururu Principal Magistrate’s Court
Respondent
Suleiman Mwihoti Kimunge
Interested Party
Procedural Posture
Judicial Review / Ruling
Legal Issues
- 1 Whether the Land Disputes Tribunal and Appeals Committee had jurisdiction to determine the dispute between the parties.
- 2 Whether the claim before the Tribunal was statute barred under the Limitation of Actions Act.
- 3 Whether the orders and awards of the Tribunal and Appeals Committee are amenable to certiorari given the time limits under Order 53 Rule 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the claim before the Tribunal was statute barred, as the interested party admitted the boundary had not changed for 18 years, making the claim time-barred under the Limitation of Actions Act. Section 13(3) of the Land Disputes Tribunal Act prohibits tribunals from entertaining statute-barred claims, thus both the Tribunal and Appeals Committee lacked jurisdiction and their awards were nullities. However, as their decisions were made more than six months before the application, certiorari could not issue against them under Order 53 Rule 2 of the Civil Procedure Rules. The adoption order by the Principal Magistrate's Court, being within six months, was quashed. The...
Court Disposition
Application partly allowed.
Orders
- The adoption order of the Tribunal award by the Principal Magistrate's Court is quashed.
- The parties are directed to refer their boundary dispute to the Nyandarua District Land Registrar for determination and to report back to the court.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
JUDICIAL REVIEW NO. 43 OF 2009
IN THE MATTER OF AN APPLICATION BY TABITHA WANJIKU NGANGA FOR AN ORDER OF CERTIORARI
REPUBLIC………………………………….…...................................……………..APPLICANT
VERSUS
NYANDARUA OLKALOU DIVISION LAND DISPUTES TRIBUNAL……….1ST RESPONDENT
NYERIPROVINCIAL LANDAPPEAL TRIBUNAL…………………………...2ND RESPONDENT
NYAHURURU PRINCIPAL MAGISTRATE’S COURT………………...……..3RD RESPONDENT
AND
SULEIMAN MWIHOTI KIMUNGE………........................................…..INTERESTED PARTY
RULING
This is a judicial review application brought under Order 53 Rule 3 of the Civil Procedure Rules as well as Section 8 and 9of the Law Reform Act. It seeks an order of certiorari to quash the proceedings and decisions of the Nyandarua Ol Kalou Division Land Disputes Tribunal’s award in Land Dispute Case No.23 of 2004, the Nyeri Provincial Land Disputes Appeals Committee in Appeal Case No. 33 of 2005 and the Nyahururu PMCC No.8 of 2009.
The application is based on the ground that the Tribunal and the Appeals Committee had no jurisdiction to entertain the matter.
The ex-parte applicant is the owner of all that piece of land known as Nyandarua/Mawingo Salient/286 while the interested party is the owner of the adjoining piece of land known as Nyandarua/Mawingo Salient/283. On or about 30th March 2004 the interested party lodged a complaint with the Tribunal claiming that the ex-parte applicant had encroached onto 3 acres of his land. After hearing the matter the Tribunal found in his favour and ordered the District Surveyor to fix the correct boundary between the two pieces of land. The ex-parte applicant’s appeal to the Appeals Committee was dismissed and on 14th April, 2009 the Principal Magistrate’s court at Nyahururu confirmed the award thus provoking this application.
In their submissions counsel for the ex-parte applicant contended that this was not a boundary dispute but a claim over 1½ acres of the applicant’s land. They also argued that the interested parties’ claim was also statute barred. For those reasons they submitted that both the Tribunal and the Appeals Committee had no jurisdiction to entertain the dispute and urged me to allow this application.
Counsel for the interested party on the other hand submitted that this was a boundary dispute which the Tribunal had jurisdiction under Section 3 of the Land Disputes Tribunal Act to deal with. On limitation they argued that the ex-parte applicant having submitted herself to the jurisdiction of the Tribunal and the Appeals Committee she cannot now be heard to complain that the matter was statute barred or that the Tribunal had no jurisdiction to deal with the matter.
In cross examination, the interested party admitted before the Tribunal that he and the ex-parte applicant have lived together and the boundaries between their pieces of land has not changed for the last 18 years. It follows that his claim was statute barred under the Limitation of Actions Act. Section 13(3) of the Land Disputes Tribunal Act forbids the Tribunals from entertaining claims which are statute barred. In the circumstances both the Tribunal and the Appeals Committee had no jurisdiction to entertain the dispute. Their awards are therefore a nullity.
Both the Tribunal and the Appeals Committee’s decisions were made more than six months prior to the filing of this application. The Tribunal award was made on 17th October 2005 while the Appeals Committee’s was made on 11th December 2008. By dint of Order 53 Rule 2of the Civil Procedure Rules they are therefore not amenable to be quashed by an order of certiorari. But the Principal Magistrate’s order of adoption is. It was made on 17th April 2009 and the application for leave to commence these proceedings was filed on 4th May, 2009. The Tribunal decision which it adopted having been declared a nullity the adoption order is hereby quashed.
I note that both the Tribunal and the Appeals Committee directed the District Surveyor to go and fix the correct boundary between the parties’ pieces of land. Although that is the right thing to do it is technically not right. Section 22 of the Registered Land Act gives the authority to determine the boundary between pieces of land to the District Land Registrar for the area. I therefore direct that the parties do refer their boundary dispute to the Nyandarua District Land Registrar for determination and report back to this court. Mention on 12th October, 2010.
As both parties are trading accusations of encroachment, I order that each bears its own costs of this application.
DATED and DELIVERED this 17th day of June 2010.
D. K. MARAGA
JUDGE.