[2012] KEHC 2334 (KLR)
The court held that the Kanduyi Land Disputes Tribunal lacked jurisdiction under section 3(1) of the Land Disputes Act No. 18 of 1990 to hear and determine disputes relating to ownership of registered land. As such, both the tribunal's proceedings and the award, as well as the judgment of the Chief Magistrate's...
Source-derived case information.
- Citation
- [2012] KEHC 2334 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Kanduyi Land Disputes Tribunal; Interested Party: Charles Munga Kipsang; Applicant: Saul Wekesa Nyongesa; Applicant: Juliana Namagwa Maina
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 62 of 2011
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application for certiorari granted; tribunal award and judgment quashed; costs awarded against applicant.
- Judges
- AO Muchelule
- Legal Topics
- Judicial Review, Jurisdiction of Tribunals, Certiorari, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman Kanduyi Land Disputes Tribunal
Respondent
Charles Munga Kipsang
Interested Party
Saul Wekesa Nyongesa
Applicant
Juliana Namagwa Maina
Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Kanduyi Land Disputes Tribunal had jurisdiction to determine disputes relating to ownership of registered land.
- 2 Whether the award and judgment adopting the tribunal's decision should be quashed by order of certiorari.
- 3 Whether costs should be awarded against the applicant due to procedural deficiencies.
Ratio Decidendi
The court held that the Kanduyi Land Disputes Tribunal lacked jurisdiction under section 3(1) of the Land Disputes Act No. 18 of 1990 to hear and determine disputes relating to ownership of registered land. As such, both the tribunal's proceedings and the award, as well as the judgment of the Chief Magistrate's Court adopting the award, were nullities. The court exercised its power of certiorari to quash both the tribunal's decision and the subsequent judgment. However, due to procedural defects in the application, particularly that leave was only granted for certiorari and not prohibition, the applicant was ordered to pay the costs of the motion.
Court Disposition
Application for certiorari granted; tribunal award and judgment quashed; costs awarded against applicant.
Orders
- The proceedings and award of the Kanduyi Land Disputes Tribunal are recalled and quashed by order of certiorari.
- The judgment of the Chief Magistrate's Court at Bungoma adopting the award is nullified and quashed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Miscellaneous Civil Application 62 of 2011
IN THE MATTER OF THE REFORM ACT CAP 26 OF THE LAWS OF KENYA
AND
IN THE MATTER OF APPLICATION BY SAUL WEKESA NYONGESA
FOR AN ORDER FOR JUDICIAL REVIEW
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT 18 OF 1990
AND
IN THE MATTER OF THE KANDUYI DISPUTES NO.28 OF 2010
REPUBLIC.............................................................................................APPLICANT
~VRS~
THE CHAIRMAN KANDUYI LAND
DISPUTES TRIBUNAL........................................................................RESPONDENT
AND
CHARLES MUNGA KIPSANG...............................................INTERESTED PARTY
SAUL WEKESA NYONGESA....................................1ST EX-PARTE APPLICANT
JULIANA NAMAGWA MAINA..................................2ND EX-PARTE APPLICANT
JUDGMENT
The 1st ex-parte Applicant was an objector in the proceedings in Kanduyi Land Disputes Tribunal case no.28 of 2010 over land parcel no.E.Bukusu/N.Sang’alo/967 in which the claimant was the Interested Party. The Interested Party claimed that he had in 1980 bought ¾ of an acre and the 1st ex-parte Applicant was saying he had in 1996 bought one acre of the land. The Tribunal (the Respondent) heard the dispute and found for the Interested Party. The award was sent to the Chief Magistrate Court at Bungoma and adopted as judgment of the court on 26/5/2011. Following leave, the 1st ex-parte Applicant filed the present motion seeking that the court issues orders of “Prohibition and Certiorari to remove into this court and quash the decision” of the Respondent which was read and adopted as judgment of the court on 26/5/2011.
I agree with the Interested Party that the leave that was sought and granted was in respect of Certiorari only, and not Prohibition. It is, however, not in dispute that, whatever the deficiencies of this application, the Respondent did not have jurisdiction under section 3 (1) of the Land Disputes Act no.18 of 1990 (now repealed) to hear or determine a dispute relating to ownership of registered land (Jotham Amunavi v. Republic, Civil Appeal no.256 of 2002 at Kisumu), and therefore the proceedings and award were a nullity. They are recalled into this court and quashed by order of Certiorari. Also nullified and quashed is the judgment of the court that adopted the award. Owing to the defects pointed out in the submissions by the Interested Party, I ask the 1st ex-parte Applicant to pays costs of the motion.
Dated, signed and delivered at Bungoma this 17th day of September, 2012.
A.O. MUCHELULE
JUDGE