[2011] KEHC 2343 (KLR)
The court found that the applicants had established a prima facie case that the Bureti Land Disputes Tribunal acted in excess of its jurisdiction by purporting to order the transfer of land titles, a matter outside its statutory mandate under Section 3 of the Land Disputes Tribunals Act. The Chief Magistrate's...
Source-derived case information.
- Citation
- [2011] KEHC 2343 (KLR)
- Parties
- Applicant: Richard A. Malel; Applicant: Phylister Langat; Applicant: Johana Langat; Applicant: Joseph Langat; Applicant: William Langat; Respondent: Chairman, Bureti Land Disputes Tribunal; Respondent: Chief Magistrate, Kericho; Respondent: Esther Cherotich Bii
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 16 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Certiorari and Stay
- Outcome
- Leave to apply for certiorari granted; leave to operate as stay; directions for filing and service of substantive motion.
- Legal Topics
- Judicial Review, Certiorari, Tribunal Jurisdiction, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard A. Malel
Applicant
Phylister Langat
Applicant
Johana Langat
Applicant
Joseph Langat
Applicant
William Langat
Applicant
Chairman, Bureti Land Disputes Tribunal
Respondent
Chief Magistrate, Kericho
Respondent
Esther Cherotich Bii
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Certiorari and Stay
Legal Issues
- 1 Whether the Bureti Land Disputes Tribunal had jurisdiction to order transfer of land titles.
- 2 Whether the award and subsequent judgment were null and void for want of jurisdiction.
- 3 Whether leave to apply for certiorari should be granted and whether such leave should operate as a stay.
Ratio Decidendi
The court found that the applicants had established a prima facie case that the Bureti Land Disputes Tribunal acted in excess of its jurisdiction by purporting to order the transfer of land titles, a matter outside its statutory mandate under Section 3 of the Land Disputes Tribunals Act. The Chief Magistrate's endorsement of the tribunal's award as a judgment was therefore potentially null and void. Consequently, the court granted leave to the applicants to apply for an order of certiorari and ordered that such leave would operate as a stay of the tribunal's award and the Chief Magistrate's judgment until the substantive motion is heard and determined, provided the motion is filed within...
Court Disposition
Leave to apply for certiorari granted; leave to operate as stay; directions for filing and service of substantive motion.
Orders
- Leave is granted to the applicants to apply for an order of certiorari as prayed.
- The leave granted shall operate as a stay of the award of the 1st Respondent and the judgment/decree of the 2nd Respondent given on 9th March 2011 in Kericho C. M. Misc. App. No. 6 of 2011 until the Notice of Motion is heard and determined.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CIVIL MISC. APPLICATION NO. 16 OF 2011 (JR)
IN THE MATTER OF LAW REFORM ACT (CAP 26) SECTIONS 8 & 9
BETWEEN
RICHARD A. MALEL & 4 OTHERS……….....................………………………….APPLICANT
VS.
THE CHAIRMAN BURETI LAND DISPUTES
TRIBUNAL…………………………………............……………………….1ST RESPONDENT
THE CHIEF MAGISTRATE, KERICHO…..................…………………….2ND RESPONDENT
ESTHER CHEROTICH BII………………..............………………………3RD RESPONDENT
RULING
The fiveApplicants, Messrs Richard A Malele, Phylister Langat, Johana Langat, Joseph Langat and William Langat seek in their Chamber Summons application dated 31st March 2011, leave to apply for an order of certiorari to remove into this Court for quashing the order dated 9th March 2011 made by The Chief Magistrate at Kericho, the 2nd Respondent, in Kericho Cr. Misc. App. No. 6 of 2011 pursuant to the award given by Bureti Land Disputes Tribunal, the 1st Respondent, on 4th February 2011.
When the application for leave came up for hearing on 4th April 2011, Mr. E. M. Orina, learned Counsel for the applicants, submitted that the 1st Respondent made the award in excess of its jurisdiction in that it purported to order transfer of land title No Kericho/Kapkatet/1161 and land title No Kericho/Kapkatet/1448to the 3rd Respondent and the 1st applicant (and others not named in the award). The 1st Respondent also purported to transfer land title Kericho/Londiani/Baration/ (whose Number was not given) to the 3rd Respondent and the 1st Applicant. This is the decision that the 2nd Respondent endorsed as a judgment of the Court ostensibly pursuant to Rule 20 of the Land Disputes Tribunals (Forms and Procedure) Rules 1993. It was Mr. Orina’s submission that the award was null and void as Section 3 of the Land Disputes Tribunals Act No. 18 of 1990 does not confer jurisdiction on the 1st Respondent to deal with title to land.
I have perused the Verifying Affidavit and the Statement of Facts and I have considered the submissions made by Mr. Orina. I am satisfied that the Applicants have made out sufficiently a case for the grant of leave to apply for an order of certiorari.
Accordingly, I grant to the applicants leave pursuant to Rule 1 (1) of Order 53of the Civil Procedure Rules to apply for an order of certiorari as prayed in prayer (a) of the application dated 31/3/2011. I also order pursuant to Rule 1 (4) of Order 53 of the Civil Procedure Rules that the leave herein granted shall operate as a stay of the award of the 1st Respondent and the judgment/decree of the 2nd Respondent given on 9th March 2011 in Kericho C. M. Misc. App. No. 6 of 2011 until the Notice of Motion herein directed to be filed has been heard and determined providing that if the Motion is not filed as directed, the leave herein granted shall lapse immediately after the expiry of the period within which the motion is required to be filed.
I direct the Applicants to file in this Court a Notice of Motion within 21 days from the date hereof and to serve the same within 14 days of filing upon the Respondents and all such persons as may be affected by it. I further direct that the Motion shall be mentioned on 28/6/2011 at 9. 00am. Seven days prior to the mention on 28/6/2011, the Applicants shall file in this Court an affidavit pursuant to Rule 3 (3) of Order 53.
A date for the hearing of the Motion shall be given on 28/6/2011. The costs of this application shall be Costs in the Motion.
DATEDat KERICHO this 6th day of April, 2011
G.B.M KARIUKI, SC
RESIDENT JUDGE
COUNSEL APPEARING
Mr. E. M. Orina, Advocate, for Mr. Moturi, Advocate for Applicants
Mr. R. Koech, Court clerk