[2012] KEHC 156 (KLR)
The court found that the Kakamega Municipality Land Disputes Tribunal acted in excess of its statutory jurisdiction by purporting to declare the sale of land parcel ISUKHA/SHIRERE/2199 null and void, a matter outside the scope of Section 3(1) of the Land Disputes Tribunal Act. The Tribunal's powers are confined to...
Source-derived case information.
- Citation
- [2012] KEHC 156 (KLR)
- Parties
- Applicant: Caleb Muyakane Abunyihwa; Applicant: Ruth Margaret Ochami; Respondent: Chairman Kakamega Municipality Land Disputes Tribunal; Interested Party: Marquiline Agatsa Shikami
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 65 of 2011
- Procedural Posture
- Judicial Review / Ruling on Notice of Motion for Certiorari
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Jurisdiction of Land Disputes Tribunal, Certiorari, Ultra Vires Decision, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caleb Muyakane Abunyihwa
Applicant
Ruth Margaret Ochami
Applicant
Chairman Kakamega Municipality Land Disputes Tribunal
Respondent
Marquiline Agatsa Shikami
Interested Party
Procedural Posture
Judicial Review / Ruling on Notice of Motion for Certiorari
Legal Issues
- 1 Whether the Kakamega Municipality Land Disputes Tribunal acted in excess of its jurisdiction by declaring a sale of land null and void.
- 2 Whether the Tribunal's decision was ultra vires and liable to be quashed by certiorari.
- 3 Whether the application for judicial review was filed within the statutory time limit.
Ratio Decidendi
The court found that the Kakamega Municipality Land Disputes Tribunal acted in excess of its statutory jurisdiction by purporting to declare the sale of land parcel ISUKHA/SHIRERE/2199 null and void, a matter outside the scope of Section 3(1) of the Land Disputes Tribunal Act. The Tribunal's powers are confined to issues of division, boundaries, occupation, or trespass, and do not include adjudicating on the validity of sale transactions or allegations of fraud. As such, the Tribunal's decision was ultra vires and liable to be quashed by an order of certiorari. The application for judicial review was filed within the statutory six-month period, and there was no evidence to the contrary....
Court Disposition
application allowed
Orders
- An order of certiorari is granted to quash the decision of the Kakamega Municipality Land Disputes Tribunal No. 2 of 2011 and all consequential orders in Kakamega C.M.C. Misc. Award No. 24 of 2011 in respect of land parcel No. ISUKHA/SHIRERE/5299.
- Each party to bear its own 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 AN APPLICATION FOR JUDICIAL REVIEW
AND
IN THE MATTER OF THE KAKAMEGA MUNICIPALITY LAND DISPUTES TRIBUNAL CASE NO. 24 OF 2011
AND
IN THE MATTER OF LAND PARCEL NO. ISUKHA/SHIRERE/5299
AND
IN THE MATTER OF THE KAKAMEGA C.M.C. MISC. AWARD NO. 24 OF 2011
BETWEEN
REPUBLLIC, THROUGHCALEB MUYAKANE ABUNYIHWA...............................1ST APPLICANT
RUTH MARGARET OCHAMI................................................................................2ND APPLLICANT
AND
THE CHAIRMAN KAKAMEG MUNICIPALITY LAND DISPUTES TRIBUNAL.......RESPONDENT
AND
MARQUILINE AGATSA SHIKAMI..................................................................INTERESTED PARTY
RULING
The application by way of Notice of Motion dated 28th December, 2011 seeks orders that the applicants, CALEB ABUNYIHWA MUNYAKANE and RUTH MARGARET OCHAMI be granted an order of Certiorari to remove into this court for the purposes of being quashed the decision of the Kakamega Municipality Land Disputes Tribunal No. 2 of 2011 and all consequential orders thereto in Kakamega C.M.C.Misc. Award No. 24 of 2011 in respect of land parcel No. ISUKHA/SHIRERE/5299.
According to the affidavit in support, the applicants are the registered owners of L.P. NO. ISUKHA/SHIRERE/2199. That the Kakamega Municipality Land Disputes Tribunal sitting in case No. 2 of 2011 made a verdict on 8. 4.11 which was adopted in Kakamega CMC Misc. Award No. 24/11. The Tribunal’s decision, inter alia, was that L.P. NO. ISUKHA/ SHIRERE/2199 was fraudulently sold to the applicants by one ZAKAYO SHIRAKU. The Tribunal declared the sale null and void.
According to the applicants, the Land Disputes Tribunal acted in excess of its jurisdiction and/or its decision is ultra vires.
The Tribunal’s jurisdiction is set out in Section 3 (1) of the Land Disputes Tribunal’s 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 Tribunal acted in excess of its jurisdiction when it purported to declare the sale transaction null and void.
The Tribunal’s decision was made on 8. 4.11. The same was adopted by the court on 26. 5.11 in Kakamega CMC Misc. Award No. 24 of 2011as per the affidavit of the applicant which is not challenged by any other evidence.
The Chamber Summons application that sought leave to file the Judicial Review proceedings was filed on 10. 11. 11. From the date of adopting the award to the date of filing these proceedings is less than six months.
The application has merits and is allowed. Each party to meet own costs.
Delivered, dated and signed at Kakamega this 22nd day of November, 2012
B. THURANIRA JADEN
JUDGE