[2019] KEELC 4145 (KLR)
The court held that the trial magistrate was correct in declining to compel the Land Registrar and Surveyor to register the appellants as owners of the suit land, as such orders can only be sought through judicial review and not in ordinary civil proceedings. The magistrate properly found that he lacked jurisdiction...
Source-derived case information.
- Citation
- [2019] KEELC 4145 (KLR)
- Parties
- Appellant: Richard K. Langat & 38 Others; Respondent: Rukuti Ole Koriata & 4 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 1 of 2017
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- MN Kullow
- Legal Topics
- Jurisdiction of Magistrate Courts, Land Registration Disputes, Enforcement of Decrees, Judicial Review Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard K. Langat & 38 Others
Appellant
Rukuti Ole Koriata & 4 Others
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate had jurisdiction to compel the Land Registrar and Surveyor to register the appellants as owners of the suit land.
- 2 Whether the magistrate erred in finding he lacked jurisdiction to enforce the decree.
- 3 Whether failure to substitute deceased respondents was fatal to the appeal.
Ratio Decidendi
The court held that the trial magistrate was correct in declining to compel the Land Registrar and Surveyor to register the appellants as owners of the suit land, as such orders can only be sought through judicial review and not in ordinary civil proceedings. The magistrate properly found that he lacked jurisdiction to grant the orders sought. Additionally, the appellants' failure to substitute the deceased respondents was a fatal procedural error that was not addressed. Consequently, the appeal lacked merit and was dismissed with costs to the respondents.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC APPEAL NO. 1 OF 2017
FORMERLY NAKURU HCA NO. 54 OF 2016
RICHARD K. LANGAT & 38 OTHERS.......................APPELLANTS
-VERSUS-
RUKUTI OLE KORIATA & 4 OTHERS....................RESPONDENTS
JUDGEMENT
By a Notice of Preliminary Objection on points of law dated 2nd September, 2014 the learned Senior Resident Magistrate Narok had found that he lacked the requisite jurisdiction to compel the Land Registrar and the Surveyor Narok to give relevant approvals and Register the appellants as the owners of LR CIS MARA/OLOLOLUNGA/156.
The appellants filed an appeal following the aforesaid findings by the lower court and raised the following grounds: -
1. That the learned Magistrate acted ultra vires in varying the decision of the land dispute tribunal and failed to uphold the decision of the said tribunal.
2. That the Magistrate’s disregard to the submissions of Appellants.
3. That the Magistrate erred in finding he lacked jurisdiction.
The Respondents had opposed the said appeal by way of a replying affidavit Wherein they stated that they are not the registered owners of land parcel CIS MARA/OLOLOLUNGA/156.
The Respondents have stated that the Magistrate did nor err in his findings and thus as he found that the decree issued was fully complied with and the only way they could enforce is by way of a Judicial Review which could give effect to the decree.
The Respondents further stated that 2nd,3rd and 4th Respondents are all deceased and no efforts were taken to substitute them as parties to the appeal.
The Appeal herein was canvased by way of written submissions and both parties had accordingly filed their submissions and the issues for determination before me are whether the trial magistrate had jurisdiction to issue and grant the orders sought.
From the pleadings filed it is not disputed that the Appellants appeal was himself on the ground that the trial Magistrate failed to exercise his authority to compel the Registrar and Surveyors Narok to comply with a decree he had issued. The order was geared towards the aforesaid officers to do an act which in my view the trial Magistrate was correct in declining since this could only be possible by way of a Judicial Review Application which the Magistrate could not entertain.
The issue of Jurisdiction has extensively been dealt with in our system and it is now established that jurisdiction is everything and once a court finds that it lacks jurisdiction then it ought to down its tools. What was before the trial court was an Application which sought the court to order third parties to be compelled to do certain acts and the court was right in finding that it lacked the requisite Jurisdiction to hear and determine the issue before it.
The Respondents in their response have also stated that the Appellants have not substituted the 3rd,4th and 5th Respondents who have since died. This is a fatal mistake that the Appellants have never disputed nor gave any reasons why they were not substituted.
From the above, I find that the Appeal herein lacks merit and I consequently order that the same is dismissed with costs to the Respondents.
DATED, SIGNED and DELIVERED in open court at NAROK on this 18TH day of MARCH, 2019.
Mohamed N. Kullow
Judge
18/3/19
in the presence of: -
CA:Chuma
Ms Muigai for the Respondents
Richard Langat 1st Appellant
Rev. Victor Tanui 22nd Appellant
Mohamed N. Kullow
Judge
18/3/19