[2014] KEHC 7129 (KLR)
The court found that the Lugari/Likuyani Division Land Disputes Tribunal was not properly constituted because only one of the three members who sat was gazetted as required by law. The other two members were not legally appointed, and therefore, the tribunal lacked jurisdiction to hear and determine the dispute. As...
Source-derived case information.
- Citation
- [2014] KEHC 7129 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman, Lugari/Likuyani Division Land Disputes Tribunal; Interested Party: Zaina Nafula Inyimba Muhila; Interested Party: Francis Wandera Maliongobi; Interested Party: Ramadhan Maulidi; Interested Party: Salilm Hamisi; Ex Parte Applicant: Eliud Wandera Muhila
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 14 of 2011
- Procedural Posture
- Judicial Review Application / Ruling on Notice of Motion for Certiorari
- Outcome
- application allowed; certiorari granted; costs to applicant against interested parties
- Legal Topics
- Judicial Review, Tribunal Composition, Certiorari, Gazettement of Members, Jurisdiction of Tribunals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman, Lugari/Likuyani Division Land Disputes Tribunal
Respondent
Zaina Nafula Inyimba Muhila
Interested Party
Francis Wandera Maliongobi
Interested Party
Ramadhan Maulidi
Interested Party
Salilm Hamisi
Interested Party
Eliud Wandera Muhila
Ex Parte Applicant
Procedural Posture
Judicial Review Application / Ruling on Notice of Motion for Certiorari
Legal Issues
- 1 Whether the Lugari/Likuyani Division Land Disputes Tribunal was properly constituted as required by law.
- 2 Whether a decision made by an improperly constituted tribunal can be adopted by a subordinate court.
- 3 Whether the orders of certiorari should issue to quash the tribunal's decision.
Ratio Decidendi
The court found that the Lugari/Likuyani Division Land Disputes Tribunal was not properly constituted because only one of the three members who sat was gazetted as required by law. The other two members were not legally appointed, and therefore, the tribunal lacked jurisdiction to hear and determine the dispute. As a result, there was no valid tribunal decision capable of being adopted by the subordinate court. The court held that the purported decision was a nullity and must be quashed by an order of certiorari. The defect in the tribunal's composition was fatal, and the application succeeded on this ground alone, regardless of the merits of the underlying dispute.
Court Disposition
application allowed; certiorari granted; costs to applicant against interested parties
Orders
- An order of certiorari is issued quashing the decision of the Lugari Land Disputes Tribunal No. 10 of 2011 and its adoption in Butali Senior Resident Magistrate Civil Application No. 4 of 2011.
- The interested parties Zaina Nafula, Francis Wandera, and Ramadhan Maulidi shall pay the applicant's costs of the proceedings.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
JUDICIAL REVIEW APPLICATION NO. 14 OF 2011
IN THE MATTER OF AN APPLICATION BY ELIUD WANDERA MUHILA TO APPLY FOR JUDICIAL REVIEW
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990 IN THE LUGARI LIKUYANI DIVISION LAND DISPUTES TRIBUNAL AWARD NO. 10 OF 2011 AND BUTALI SENIOR RESIDENT MAGISTRATE CIVIL APPLICATION NO. 4 OF 2011
BETWEEN
REPUBLLIC …..................................................................................APPLICANT
AND
THE CHAIRMAN, LUGARI/LIKUYANI
DIVISION LAND DISPUTES TRIBUNAL ………………....... RESPONDENT
VERSUS
ZAINA NAFULA INYIMBA MUHILA
FRANCIS WANDERA MALIONGOBI
RAMADHAN MAULIDI …………….….. INTERESTED PARTIES
SALILM HAMISI
EX-PARTE
ELIUD WANDERA MUHILA
R U L I N G
Before me is a Notice of Motion filed on 10th May, 2011 under Order 53 rule 2 of the Civil Procedure Rules as well as Section 8 & 9 of the Law Reform Act (Cap. 26). It was filed through the applicant's advocate, Ms J. J. Mukavale Advocate after leave was granted on 14th April, 2011.
The prayers in the Notice of Motion are a request for orders of certiorari to quash the decision of the Lugari Land Disputes Tribunal No. 10 of 2011 which was filed in Butali Senior Resident Magistrate's court as Civil Misc. Appl. No. 4 of 2011. It was also sought that costs of the application be provided for.
The application was grounded on the verifying affidavit of the applicant and the statement of facts which were filed with the application for leave. Though the substantive Notice of motion was filed with a supporting affidavit sworn on 5th May 2011, that was a mistake. In judicial review proceedings brought under Order 53 of the Civil Procedure Rules, the documents to be relied upon are only those filed with the Chamber Summons for leave, unless leave is granted by court to file further documents by the applicant. I will ignore the said affidavit, as no leave was obtained to file the same.
The application is opposed. Though there is no response filed in opposition to the application, three of the interested parties Francis Wandera, Ramadham Maulidi and Zaina Nafula, appeared in court at the hearing and opposed the application verbally.
This application will be allowed because on a major defect of the composition of the membership of the Land Disputes Tribunal which made the decision which was adopted by the Magistrate's court. As rightly pointed out by counsel for the applicant, which has not been challenged by any of the respondents, the members who sat at the Tribunal were three that is Protus Wabwire, Jotham Kisengo and Major Rrt. Adriana Akweywa.
The membership of the Land Dispute Tribunal for Lugari area in Western Province was gazetted by the Minister through gazette notice number 1507-1516 in the Kenya Gazette of 19th June 2009. Of the three members who sat in the matter in issue herein, only Major Rtd. Adriana Akweywa was so gazetted. The other two were not gazetted as members of the Tribunal. They therefore had no business in purporting to sit as members of the Land Disputes Tribunal. They could not legally hear land disputes, and determine or make decisions the way they purported to do. Those who determined this matter did not constitute a Tribunal. No Tribunal therefore sat to determine the land issue therein.
Irrespective of the merits of the decision reached, since there was no legally constituted Tribunal convened, there was no decision of a Tribunal as envisaged under the Land Disputes Tribunal Act. The purported decision made could therefore not be adopted by the Subordinate Court, since there was no decision of the Land Disputes Tribunal. The purported decision has to be quashed.
On the above basis alone, this application must succeed. The application will therefore be allowed. I allow the application and grant the Certiorari orders sought. The interested parties, who appeared at the hearing and opposed the application, that is Zaina Nafula, Francis Wandera and Ramadhan Maulidi will pay the applicant's costs of the proceedings herein.
Dated and delivered at Kakamega this 13th day of February, 2014
George Dulu
J U D G E