[2010] KEHC 898 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

MISC. CIVIL APPLICATION NO. 76 OF 2008

IN THE MATTER OF: AN APPLICATION BY JAMES OCHIENG RABEL

FOR JUDICIAL REVIEW(CERTIORARI AND PROHIBITION)

AND

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

AND

IN THE MATTER OF: RONGO LAND DISPUTES TRIBUNAL (RONGO DIVISION)

AND

IN THE MATTER OF: SENIOR RESIDNET AMGISTRATE’S COURT AT RONGO

AND

IN THE MATTER OF: RONGO SRMCC MISC. APPLICATION NO. 28 OF 2008

BETWEEN

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

VERSUS

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

THE RESIDENT MAGISTRATE’S COURT AT RONGO......................................2ND RESPONDENT

AND

DAVID OTIENO ADEMBA..................................................................................INTERESTED PARTY

AND

EX-PARTE

JAMES OCHIENG RABEL Suing as the Legal Representative of the

Estate of WALTER RABEL OTIENO – DECEASED

RULING

The ex-parte applicant is the legal representative of the estate of Walter Rabel Otieno. He filed an application by way of the Notice of Motion seeking an order for judicial review in the nature of Certiorari to remove into this court and quash the proceedings and decision of the 1st respondent dated 16th September 2008 and the adoption proceedings of the said decision by the 2nd respondent concerning Land Parcel No. Kamagambo/Kanyawanga/318, hereinafter referred to as “the suit property.” The 1st respondent directed that the interested party be registered as the proprietor thereof in place of Walter Rabel Otieno, hereinafter referred to as “the deceased.” The ex-parte applicant also sought an order of judicial review in the nature of prohibition to prohibit the 1st respondent from further hearing or deliberating upon any claim relating to ownership of the suit property. He also sought a similar order as against the 2nd respondent to prohibit any further proceedings or dealing in respect of the suit land.

The application was made on grounds,inter alia, that:

·The 1st respondent exceeded its jurisdiction when it dealt with an issue concerning ownership of the suit property in terms of the provisions of section 3 (1) of the Lands Disputes Tribunals Act.

·The proceedings and decision of the 1st respondent are null and void.

·The 1st respondent was illegally constituted in so far as the panel of elders who sat and deliberated on the matter were never gazetted or appointed by the District Commissioner, Rongo, as by law required.

The ex-parte applicant swore an affidavit in support of the

application and stated that the deceased died on 22nd July 1987. The deceased was the registered proprietor of the suit property pursuant to the provisions of the Registered Land Act. A title deed was issued to him on 2nd March 1981. In June 2008 the interested party filed proceedings before the 1st respondent claiming ownership of the suit property. The 1st respondent awarded the suit property to the interested party. The said decision was adopted by the 2nd respondent on 24th October 2008.

The interested party filed a replying affidavit and stated that the suit property was first registered in the name ofObinga Oyugi who was his grandfather. The respondent’s father, Ademba Obinga, was the only child of Obinga Oyugi. When the respondent’s grandfather died, Walter Rabel Otieno commenced succession proceedings and had the land registered in his name. That was improper in law, he stated. The interested party added that the suit property is an ancestral land inherited from his grandfather and the ex-parte applicant had purported to disinherit them.

The jurisdiction of a Land Dispute Tribunal is clearly set out undersection 3 (1)of the Land Disputes Tribunals Act. Such a tribunal can only deal with cases of a civil nature involving a dispute as to:

(a)the division of, or the determination of boundaries to land, including land held in common;

(b)a claim to occupy of work land;

(c)trespass to land.

Such a tribunal cannot adjudicate on issues of ownership of a registered land. See ASMAN MALOBA WEPUKHULU & ANOTHER –VS- FRANCIS WAKWABURI BIKET, Civil Appeal No. 157 of 2001. The 1st respondent clearly acted without jurisdiction. That being the case, its decision as well as the adoption proceedings before the 2nd respondent were a nullity.

If the interested party believed that the deceased was wrongfully registered as the proprietor of the suit property, he should have filed an appropriate claim in the high court but not before the 1st respondent.

I grant the orders as sought by the ex-parte applicant. The interested party and the 1st respondent shall bear the costs of this application.

DATED, SIGNED AND DELIVERED AT KISII THIS 29TH DAY OF JULY, 2010.

D. MUSINGA

JUDGE.

29/7/2010

Before D. Musinga, J.

Mobisa – cc

Mr. Oguttu for the Ex-parte Applicant

N/A for the Interested Party

Court: Ruling delivered on 29th July, 2010 in open court.

D. MUSINGA

JUDGE.