[2005] KEHC 3170 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 29 OF 1998

APPELATE SIDE

STEPHEN KORIR …………………………………………….………. APPELLANT

V E R S U S

KIPSANG BITOK ………………………………………………….. RESPONDENT

(Being an appeal from the Judgment and Decree of 4/10/1995 and/or 5/10/95 in

Kapsabet SRMCC No. 15 of 1988 by C. O. MOITUI Esq. S. R. M.)

JUDGMENT

The appeal before me, which has been preferred by Stephen Korir arises from the

decision of the Senior Resident Magistrate, Kapsabet. It is not clear from the proceedings

whether the decision was made on 4/10/1995, or 5/10/1995, as will be seen later.

However, briefly, Kipsaina A. Bitok filed his suit against Stephen Korir at the

aforementioned court sometimes in April, 1988, by virtue of which, he sought orders

inter alia, to have Korir excise a portion of 2. 8 acres from parcel NANDI/SARORA/236

(hereinafter called ‘the subject property’) and to have the same transferred to him at his

parcel of land, namely, NANDI/SARORA/237. He based his claim on the fact that Korir

who was his brother, was originally registered as the proprietor of the aforementioned

plot No. 236, then 30 acres in total, which it was claimed was held by Korir in trust for

himself and his other brothers, that each of the brothers was entitled to get a portion of

7. 4 acres, but that Korir was erroneously allocated with 10 acres, while he, Bitok, only

got 4. 8, instead of 7. 4 acres. His prayer was that Korir be ordered to transfer to him an

extra portion of 2. 6 acres, to balance the equation.

Korir who denied the allegations and filed a counterclaim averred that he was

allocated with only 8. 8 acres and not 10 acres, that the land in question was originally

divided amongst three brothers as he had not been a party to the agreement, which was

being referred to, as he had already been allocated with a different parcel of land, that

even then, the matter had been referred to the Nandi District Land Registrar who had

confirmed that the boundaries were in order, and that in any event, Bitok had already

been allocated with a different parcel of land and should therefore not lay any claim to

the portion which Korir held. It was therefore his prayer that not only should the suit be

dismissed, but that the boundaries between the two parcels be reinstated, and that Bitok

be ordered to vacate 2 acres of the subject property, whose possession he claimed, was

illegal.

When the parties appeared before the learned Resident Magistrate on 24. 11. 1998

Korir’s Counsel informed the court that the matter revolved around a boundary, and the

learned Magistrate referred it to the Nandi Land Registrar, with an order that the

boundaries be fixed. The District Land Registrar failed to comply with the said orders,

and on 16/2/1995 the Magistrate vacated his earlier orders, and instead ordered that the

matter do proceed to trial, which was not to be, as on 27. 7/1995, the day when the trial

was set to commence, the learned Senior Resident Magistrate, ordered that the matter be

referred to the Land Disputes Tribunal for hearing and disposal.

The records reveal that Mr. Chumo, Korir’s learned Counsel, appeared before the

Magistrate on 4. 10. 1995, and on the same day, the Magistrate entered Judgment for Bitok

in line with terms of the Land Disputes Tribunal Award filed in Court on ‘5th October,

1995’ after which a decree was drawn out in the following terms:

“THIS CASE having been heard by the Land Disputes Tribunal’s Panel of Elders

on 13th September 1995 and award having been filed in Court on 5th October,

1995:

IT IS HEREBY ORDERED THAT:-

(a) Judgment is hereby entered for the plaintiff in terms of Land Disputes

Tribunal’s Award filed in court on 5/10/1995.

(b) The plaintiff to get 2. 7 acres out of parcel of land NANDI/SARORA/236.

(c) The court to sign all the conveyance documents in favour of the plaintiff if

the defendant refuses or fails to do so.

Sealed and dated at Kapsabet this 15th day of October 1995.

C. O. MOITUI

SENIOR RESIDENT MAGISTRATE

Issued at Kapsabet in 5th day of October 1995.

C. O. MOITUI

SENIOR RESIDENT MAGISTRATE”

It is important that I point out that Bitok was the plaintiff at the Tribunal, while Korir was

the defendant.

Korir who I shall now refer to as the appellant who felt aggrieved by the said

decision and order has now preferred this appeal. Bitok shall appear as ‘the respondent’.

I have taken the submissions by both able Counsel and it is clear from the

proceedings that though the award was ‘adopted’ as a decree of the court on 4/10/1995,

there was no award to adopt at that date, as the same was not issued until a day later on

5/10/1995, in any event, the decision had not been upon the parties in compliance with

the requirements of rule 20 of the Land Disputes Tribunals (Forms and Procedure) Rules

1993, which mandates at “the conclusion of every dispute the Tribunal shall make a

determination to be served on the person affected by the decision and such determination

shall be filed in the Magistrate’s court, and the court shall enter judgment in accordance

with the decision of the Tribunal and upon judgment being entered a decree shall issue

and be enforceable in the manner provided for under the Civil Procedure Act.”

In my understanding the above legal provisions are mandatory and should be

complied with to the letter otherwise, any proceedings which contravene the requirements

are null and void.

But I could be wrong in the above finding, and in which case, the other issue for

my determination would be whether the Land Disputes Tribunal had jurisdiction to

entertain the matter in the manner that it did.

Section 3 of the Land Disputes Tribunals Act, which defines the jurisdiction of

the Tribunal limits it to, inter alia“all cases of a civil nature involving a dispute as to the

division of, or the determination of boundaries to land, including land held in

common…………”, and that ‘notwithstanding any other written law no magistrate’s court

shall have or exercise jurisdiction or powers in cases involving’ any of the above issues.

It is evident from the pleadings that by the time when the matter was referred to

the Tribunal, the land in question was already registered under the Registered Land Act, a

fact which was clearly pleaded by the appellant who maintained in paragraph 6 of his

defence and counterclaim that he obtained the title to the subject land on first registration

and that it was not subject to challenge. Indeed that contention is supported by Section

27 (a) of the Registered Land Act Cap 300 which stipulates that‘the registration of a

person as the proprietor of land shall vest in that person the absolute ownership of that

land together with all rights and privileges belonging or appurtenant thereto’.

It being clear that by the time when the matter was referred to the Tribunal, the

respondent had an indefeasible title, such title could only be challenged by a party on

grounds of fraud or mistake, which were not the issues in the matter before the lower

court, and even if they were, they should have been determined by the trial Magistrate

and not the Tribunal which lacked the necessary jurisdiction. The proceedings by the

Tribunal were thus a nullity ab initio and the fact that it was the Magistrate who had

preferred the matter to the Tribunal, could not confer any jurisdiction on it.

It is for the above reasons that I find that this appeal is meritorious. The same is

allowed, and the judgment and decree of the aforementioned decree of the subordinate

court and all consequential orders are hereby set aside. It is ordered that the matter be

referred back to the Kapsabet court and the local District Land Registrar for adjudication.

However due to the fact that neither party is to blame, each party shall bear its own costs

of this appeal

Dated and delivered at Eldoret this 15th day of March 2005.

JEANNE GACHECHE

JUDGE