[2019] KEELC 3743 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC JUDICIAL REVIEW NO.15 0F 2017

IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

AND

IN THE MATTER OF: LAND DISPUTES TRIBUNAL KAKUZI AWARD IN RESPECT

OF LAND PARCEL LR.KAKUZI/KIRIMIRI/BLOCK 9/740

AND

IN THE MATTER OF: THE CHIEF MAGISTRATES COURT AT THIKA L.D.T/DO.

CASE NO.67 OF 2011

AND

IN THE MATTER OF: LAND DISPUTE TRIBUNAL ACT NO.18/90

IN THE MATTER OF: THE REGISTERED LAND ACT CAP 300 LAWS OF KENYA

BETWEEN

ROSE WAMBUI WANYOIKE........................EX-PARTE APPLICANT

VERSUS

LAND DISPUTE TRIBUNAL KAKUZI..................1ST RESPONDENT

CHIEF MAGISTRATES COURT AT THIKA.......2ND RESPONDENT

AND

MWEA MWATHE.........................................1ST INTERESTED PARTY

SASIDA MUTHONI.....................................2ND INTERESTED PARTY

JUDGMENT

Pursuant to the Leave granted by the Court on 18th October 2011, to the Applicant herein to apply for an Order of Certiorari and Prohibition, the Ex-parte Applicant filed a Notice of Motion dated 26th October 2011, and sought for the following orders:-

1) For an order of Prohibition prohibiting the Chief Magistrates Court at Thika from hearing or entertaining any further proceedings or issuing any further orders in LTD Case No.67 of 2011 Thika, and Kakuzi Land Disputes Tribunal from entertaining similar proceedings affecting title to land and ownership of LR.Kakuzi/

Kirimiri/Block 9/740.

2) An Order of Certiorari to bring to High Court and quash proceedings and award of the Kakuzi Land Disputes Tribunal in respect of LR.Kakuzi/Kirimiri/Block 9/740 or the award in LDT Case No.67 of 2011 at Thika by K. W. Cheruiyot (DM II) on 3rd October 2011.

3) Cost of this application be provided for.

The application was supported by the ground stated on theStatutory Statementof the Ex-parte ApplicantRose Wambui Wanyoike, dated14th October 2011and these grounds are:-

a) That the Applicant herein is the registered proprietor of that parcel of land known as LR.Kakuzi/Kirimiri/Block 9/740, which land she holds to the exclusion of all other persons as per the provisions of the law.

b) That the Interested Parties herein obtained an award which by itself is irregular, unprocedural and or illegal, since the Tribunal has no jurisdiction to entertain, hear or make Ruling or Award on issues pertaining to title to land and/or ownership.

c) That the Kakuzi Land Disputes Tribunal Award was prejudicial to the Applicant’s sole interests in respect of LR.No.Kakuzi/Kirimiri/Block 9/740.

d) That the Kakuzi Land Disputes Tribunal erred in determining this matter as it had no jurisdiction to do so.

In her Affidavit in Verification of the statement, the Ex-parte Applicant averred that she filed a Land Dispute at Kakuzi Land Disputes Tribunal between herself and the Interested Parties which case was referred to as LDT No.22/011/7, Kakuzi Land Disputes Tribunal. Further, that the said Land Disputes Tribunal, ordered on 2nd September 2011, that the Interested Parties herein do take and partition her land LR.Kakuzi/Kirimiri/Block 9/740,in equal share. The said decision was attached asRW-2. It was her contention that all the documents indicate that she is the registered owner of the subject land parcelLR.Kakuzi/Kirimiri/Block 9/740, and therefore the said Ruling was a miscarriage of justice as the said tribunal did not have jurisdiction to hear matters of ownership and title. She also contended that the said tribunal’s Ruling and/or award was read in theChief Magistrates Courton3rd October 2011asLDT No.67 of 2011as perRW-3. It was her further contention that her advocate has advised her that the said Tribunal had no jurisdiction to entertain and/or determine issues touching on title to land and ownership of land and therefore the Tribunal erred in ordering that she surrendersLR.No.Kakuzi/Kirimiri/Block 9/740,to the Interested Parties.

Further, that she has been advised by her Counsel that the Interested Parties have no locus standi to claim her parcel of land as the two are strangers. It was her further contention that she acquired the subject title legally in the year 2002, having been a member and/or beneficiary of Kakuzi East Settlement Scheme and that she has been utilizing and tilting the subject parcel as the registered proprietor and/or owner.

She also contended that she is aggrieved by the said Tribunal’s award as it is prejudicial to her exclusive proprietary interest and/or rights in respect of LR.No.Kakuzi/Kirimiri/Block 9/740. She urged the Court to grant her an Order of Certiorari to quash the said decision of the Tribunal and prohibit the enforcement of the Ruling made by the Thika Chief Magistrates Courtin adopting the said award of the Tribunal.

Though the Notice of Motion was served upon the Respondents and the Interested Parties, none of them entered appearance nor filed any response to the Ex-parte Applicant’s Notice of Motion application. The application is therefore unopposed.

The Ex-parte Applicant filed her submissions on 31st July 2018, and urged the Court to allow her application. It was submitted that Kakuzi Land Disputes Tribunal did not have jurisdiction to hear and entertain and/or make a Ruling and/or award on matters touching on ownership or otherwise Ruling that a party should surrender his land to another.

The Applicant relied on the provisions of the Land Disputes Tribunal Act, of 1990 specifically Section 3(1) which states:-

“The jurisdiction of the Land Dispute Tribunals are:-

a) To determine boundaries to the land held in common.

b) Claim to occupy or work on land and finally;

c) Trespass to land.

It was her further submission that the Land Disputes Tribunal Act does not grant powers to the District Land Disputes Tribunal to determine issues touching on title to land ownership or cancellation of any transfer documents and/or Share Certificate.

She relied on the case of Gibson Sengete Matolo…Vs…Eastern Provincial Land Disputes Committee & 3 Others, HCC Misc.Appl No.33 of 2003,where the Court held that:-

“District Tribunals or even Land Disputes Appeals Committee have no powers to entertain matters touching on ownership and title to land.”

Further, Applicant relied on the case of “In the matter of Asman Maloba Wepukhulu & Another…Vs…Francis Wakwabubi, Kisumu Court of Appeal No.157 of 2001, where the Court held that:-

“Where a title to land has been unlawfully interfered with by bodies which lacked jurisdiction, such an award or any subsequent order emanating from and/or pursuant to the illegal award is also illegal and should be quashed”.

The Applicant urged the Court to allow her Notice of Motion.

Though the application is not opposed, the Court finds that the issue for determination is whether the application is merited?

In the case of OJSC Power Machines Ltd, Trans Century Ltd and Civicon Ltd (Consortium)…Vs…Public Procurement Administrative Review Board, Kenya & 2 Others, NRB CA 28 of 2016 (2017) eKLR, the Court of Appeal held that:-

“The purpose of Judicial Review is to ensure that a party receives fair treatment in the hands of public bodies; that is the purpose of Judicial Review to ensure that public body after according fair treatment to a party reacts on a matter which it is authorized by law to decide on itself, a conclusion which is correct in the eyes of the court in the Judicial Review proceedings….

Judicial Review is concerned with the decision making process, not with the merits of the decision itself”.

The Ex-parte Applicant has sought for Orders of Certiorari and Prohibition. These are public law remedies available to persons who legally recognized interest have been infringed by public bodies or offices exercising such Statutorypowers. Halsbury’s Laws of England, 4th Edition at Para 46 states as follows:-

“The courts have inherent jurisdiction to review the exercise by public bodies or offices of Statutory powers impinging on legally recognized interest. Powers must not be exceeded or abused.”

Further in the case of Kenya National Examination Council…Vs…R, Exparte Geofrey Gathenji Njoroge & 9 Others (1997) eKLR, the Court did set out the scope of the remedies of Certiorari, Mandamusand prohibition as follows:-

“Prohibition is an order from the High Court directed to an inferior tribunal or body which prohibits that tribunal or body to continue proceedings in excess of its jurisdiction in contravention of the law of the land. Only an Order of Certiorari can quash a decision already made and an Order of Certiorari will issue if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons….”

It is not in doubt that the ex-parte Applicant had a land dispute overLR.No.Kakuzi/Kirimiri/Block 9/740. The Applicant is a title holder of thisKakuzi/Kirimiri/Block 9/740,as can be discerned from her title deed attached to the proceedings. The said title was issued to her on10th April 2002. Further, it is evident that theKakuzi District Land Disputes Tribunal,did arbitrate the matter which related to title of a registered land and in its findings, it held that the suit landKakuzi/Kirimiri/Block 9/740,was allocated to the Interested Parties and that the same should be partitioned equally between the Interested Parties. After the said Ruling by theDistrict Land Disputes Tribunal, the award was read in court by theThikaChief Magistrate’s Court,and the said award was to be confirmed on7th November 2011. However, the Applicant obtained Stay Orders before the confirmation was done. However, the proceedings ofDO Case NO.67 of 2011are still pending beforeThika Chief Magistrate’s Court.

It is evident that jurisdiction is everything. See the case of Owners of Motor Vessel ‘Lilian S’…Vs…Caltex Oil (Kenya) LTD (1989) 1 KLR,

where the Court held that:-

“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no Jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without Jurisdiction”.

The Land Disputes Tribunal Act, of 1990 sets out the jurisdiction of the Land Disputes Tribunals. It is evident that disputes over registered land do not fall under the jurisdiction of the District Land Disputes Tribunal. In this case, the Kakuzi District Land Disputes Tribunal heard and determined questions of ownership of registered land which had a title deed. The said Kakuzi District Land Disputes Tribunal did not have jurisdiction to entertain such dispute and therefore the said Land Disputes Tribunal exceeded its jurisdiction.

Since the Kakuzi District Land Disputes Tribunal had no jurisdiction to determine disputes relating to ownership of registered land, then whatever award they made was null and void for want of jurisdiction. Since the award of the Tribunal was null and void, the Thika Chief Magistrate’s Courthad no jurisdiction to read and confirm an award that was null and void. Therefore, this Court finds that the decision of Kakuzi Land Disputes Tribunal in LDT No.22/011/7 was ultra vires as the said Tribunal had no jurisdiction to interfere with a title of property.

Having now carefully considered the Notice of Motion application dated 26th October 2011 and the annextures thereto and the other pleadings in general, the written submissions and the relevant provisions of law, the Court finds the said application merited and it is allowed entirely in terms of prayers No.1 & 2 with costs to the Ex-parte Applicant.

It is so ordered.

Dated, Signed and Delivered at Thika this 5th day ofApril 2019.

L. GACHERU

JUDGE

In the presence of

Mr. Kiptoo holding brief for Mr. Mugo for Ex-parte Applicant

No appearance for 1st Respondent

No appearance for 2nd Respondent

No appearance for 1st Interested Party

No appearance for 2nd Interested Party

Lucy - Court Assistant

Court – Judgment read in open court in the presence of the above stated advocate and absence of the other parties.

L. GACHERU

JUDGE