[2012] KEHC 224 (KLR)
The court found that the Vihiga District Land Disputes Tribunal acted in excess of its jurisdiction by making a decision on ownership and transfer of registered land, which is expressly excluded from the Tribunal's mandate under Section 3(1) of the Land Disputes Tribunals Act No. 18 of 1990. The Tribunal's decision...
Source-derived case information.
- Citation
- [2012] KEHC 224 (KLR)
- Parties
- Applicant: Joash Atiabila; Applicant: Ezina Buluku Odali; Applicant: Elisi Sagala Odali; Respondent: The Chairman, Vihiga District Land Tribunal; Interested Party: Elima M’mochi Amisi; Interested Party: Mohamed Amisi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 81 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Certiorari
- Outcome
- application allowed
- Legal Topics
- Jurisdiction of Land Tribunals, Certiorari, Ownership of Registered Land, Succession and Administration, Excess of Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joash Atiabila
Applicant
Ezina Buluku Odali
Applicant
Elisi Sagala Odali
Applicant
The Chairman, Vihiga District Land Tribunal
Respondent
Elima M’mochi Amisi
Interested Party
Mohamed Amisi
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Certiorari
Legal Issues
- 1 Whether the Vihiga District Land Disputes Tribunal acted in excess of its jurisdiction in making orders on ownership and transfer of registered land.
- 2 Whether the decision of the Tribunal was a nullity for want of jurisdiction under the Land Disputes Tribunals Act No. 18 of 1990.
- 3 Whether certiorari should issue to quash the Tribunal's decision.
Ratio Decidendi
The court found that the Vihiga District Land Disputes Tribunal acted in excess of its jurisdiction by making a decision on ownership and transfer of registered land, which is expressly excluded from the Tribunal's mandate under Section 3(1) of the Land Disputes Tribunals Act No. 18 of 1990. The Tribunal's decision was therefore a nullity. The appropriate remedy was to grant an order of certiorari to quash the Tribunal's decision and all consequential orders. The court further noted that the parties should have their dispute arbitrated before the proper forum, as the Tribunal lacked the legal authority to determine issues of ownership and transfer of registered land.
Court Disposition
application allowed
Orders
- An order of certiorari is granted to remove into the High Court and quash the decision of the Vihiga Land Disputes Tribunal in Case No. 7 of 2005 and all consequential orders in Vihiga Senior Resident Magistrate’s Court Misc. Award No. 86 of 2005 relating to Land Parcel No. North Maragoli/Kisatiru/690.
- No order as to costs.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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IN THE MATTER OF L.R. N.MARAGOLI/KISATIRU/690
AND
IN THE MATTER OF VIHIGA DISTRICT LAND DISPUTE TRIBUNAL CASE NO. 7 OF 2005
BETWEEN
REPUBLLIC ……….......………………………………………… APPLICANT
AND
JOASH ATIABILA
EZINA BULUKU ODALI
ELISI SAGALA ODALI………………………...............………..APPLICANTS
VERSUS
THE CHAIRMAN, VIHIGA DISTRICT LAND TRIBUNAL .........RESPONDENT
AND
ELIMA M’MOCHI AMISI ……………………….......… INTERESTED PARTY
RULING
The application by way of Notice of Motion dated 18. 11. 05 seeks orders that the applicants JOASH ATIABILA, EZINA BULUKU ODALI and ELISI SAGALA ODALI be granted an order of CERTIORARI to remove into this court and quash forthwith the decision of Vihiga Land Disputes Tribunal sitting at Sabatia in Case No. 7 of 2005 all other consequential orders thereto in Vihiga Senior Resident Magistrate’s Court Misc. Award No. 86 of 2005 in relation to Land Parcel No. North Maragoli/Kisatiru/690.
The application was supported by the affidavit of JOASH ATIABILA, the 1st applicant sworn on 26. 10. 05.
The said JOASH ATIABILA, the 1st applicant and the 2nd applicant, EZINA BULUKU ODALI passed away during the pendency of this suit.
The 3rd applicant, ELISHA SAGALA ODALI swore a further affidavit on 20. 11. 07.
In the said affidavit, the applicant has averred that the land the subject matter of this case is registered in the name of his late father, BATHELOMAYO ODALI WATIABILA. That no Succession proceedings have been carried out in the estate of the late BATHELUMAYO ODALI WATIABILA. That the Tribunal therefore acted in excess of its jurisdiction.
The application was opposed to as per the replying affidavit by the Interested Party, ELIMA MMOCHI AMISI sworn on 20. 3.06. The said Interested Party passed on and was substituted by the consent of the parties by her son, MOHAMED AMISI.
In the said replying affidavit, it is contended that the Land Disputes Tribunal acted within the law. That the late BATHELOMAYO ODALI WATIABILA was registered to hold the land the subject matter herein in trust for his late brother LUMERA’s family. The family of the late BATHELOMAYO ODALI WATIABILA is blamed for failing to take out Letters of grant of Administration of his estate. The applicants are also blamed for failing to appeal against the decision of the Land Disputes Tribunal to the Provincial Land Disputes Appeals Committee.
According to the said affidavit, the claim before the Tribunal was on ownership of land and the right to work or occupy land.
The Vihiga District Land Disputes Tribunal made the following decision:-
“ALLIMA MMOCHI AMISI should take the possession of N.MARAGOLI/KISATIRU/690 as prayed and the land registrar is hereby ordered to effect the changes.”
Clearly this is a decision on ownership and transfer of land. The elders acted in excess of jurisdiction contrary to Section 3 (1) of the Land Dispute Tribunals Act No. 18 of 1990 which stipulates as follows:-
“Subject to this Act, all 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 or work land; or
(c)Trespass to land.
Shall be heard and determined by a Tribunal established under section 4. ”
The decision of the Tribunal was therefore a nullity. The application is allowed with no orders as to costs. The parties ought to have their dispute arbitrated before the right forum.
Delivered, dated and signed at Kakamega this 7th day of November, 2012
B. THURANIRA JADEN
J U D G E