[2011] KEHC 1600 (KLR)
The court found that the application for judicial review was not time-barred because the decision of the Kahuro Land Disputes Tribunal was read to the parties on 14th March 2007, and the application for leave was filed on 9th July 2007, within the six-month statutory period. On the substantive issue, the court held...
Source-derived case information.
- Citation
- [2011] KEHC 1600 (KLR)
- Parties
- Applicant: Wanjiru Mburu Gitau; Respondent: Kahuro Land Dispute Tribunal; Respondent: The Resident Magistrate’s Court at Murang’a; Interested Party: David C. Ngigi Gitau
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 49 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Judicial Review (certiorari and Prohibition)
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Jurisdiction of Land Disputes Tribunals, Judicial Review Certiorari, Judicial Review Prohibition, Title to Land, Statutory Time Limits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wanjiru Mburu Gitau
Applicant
Kahuro Land Dispute Tribunal
Respondent
The Resident Magistrate’s Court at Murang’a
Respondent
David C. Ngigi Gitau
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Judicial Review (certiorari and Prohibition)
Legal Issues
- 1 Whether the Kahuro Land Disputes Tribunal had jurisdiction to determine a dispute relating to title to land under Section 3(1) of the Land Disputes Tribunals Act No. 18 of 1990.
- 2 Whether the application for judicial review was time-barred under Rule LIII rule 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the application for judicial review was not time-barred because the decision of the Kahuro Land Disputes Tribunal was read to the parties on 14th March 2007, and the application for leave was filed on 9th July 2007, within the six-month statutory period. On the substantive issue, the court held that the Kahuro Land Disputes Tribunal lacked jurisdiction under Section 3(1) of the Land Disputes Tribunals Act to determine disputes relating to title to land or to order the subdivision and transfer of registered land. Since the tribunal's decision would interfere with the applicant's title to land, the decision was null and void ab initio. Accordingly, the court allowed the...
Court Disposition
application allowed
Orders
- An order of certiorari is issued to quash the proceedings, award and/or judgment of the Kahuro Land Disputes Tribunal in Tribunal case No. 03 of 2006.
- An order of prohibition is issued barring the Resident Magistrate’s Court at Murang’a from hearing or determining any application for confirmation or adoption of the Kahuro Land Disputes Tribunal award in Tribunal case No. 03 of 2006 as judgment of the court or taking any other proceedings antecedent thereto in...
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
MISC. APPLICATION NO. 49 OF 2010
WANJIRU MBURU GITAU............................................……….…………….APPLICANT
VERSUS
KAHUROLANDDISPUTE TRIBUNAL..................................................1ST RESPONDENT
THE RESIDENT MAGISTRATE’S COURT AT
MURANG’A.............................................................................................2ND RESPONDENT
AND
DAVID C. NGIGI GITAU.........................................................................INTERESTED PARTY
RULING
The subject matter of this ruling is the Notice of Motion dated 29th July 2007 in which Wanjiru Mburu Gitau, the applicant herein, sought for the following orders:
That this Honourable Court be pleased to issue an order of certiorari to remove into this Court the proceedings, award and/or judgment of the Kahuro Land Disputes Tribunal the 1st Respondent herein in Tribunal case No. 03 of 2006 and quash the same by an order of Cetiorari.
That this Honourable Court be pleased to issue an order of Prohibition baring the Resident Magistrate’s Court at Murang’a the 2nd respondent herein from hearing and/or determining an application by David C. Ngigi Gitau for confirmation and/or adoption of the Kahuro Land Disputes tribunal award in Tribunal case No. 03 of 2006 as judgment of the court and/or taking any other proceedings antecedent thereto in Murang’a L.D.T. Case No. 26 of 2007.
That the costs of this application be provided for.
The Motion is accompanied by an amended statement of fact and is verified by the affidavit of Wanjiru Mburu Gitau sworn on 4th July 2007. When served David C. Ngigi Gitau, the Interested Party herein, filed a replying affidavit to oppose the Motion.
The main contention raised by the Interested Party is to the effect that the decision sought to be impugned was made on 12th April 2006 whereas the application for leave was filed on 9th July 2007, hence the Motion dated 7th July 2007 was time-barred underRule LIII rule 2of the Civil Procedure Rules. Under the foresaid provision leave to take out judicial review proceedings in the nature of certiorari must be filed within six months from the date of the decision sought to be quashed was made. This being a preliminary issue, the law requires it to be disposed of first. There is doubt that the order for leave was granted on 9th July 2007. I have considered the material paced before this court and it is clear that the interested party filed a complaint before the Kahuro Land Disputes Tribunal claiming that his later father John Gitau had purchased a portion measuring 1 acre from the Exparte applicant’s late husband, Linus Mburu Gitau. The dispute was heard by the tribunal and in its judgment deliver on 4th March 2007, the tribunal ordered the parcel of land known as LOC. 8/GATURI/52 to be subdivided to excise 1 acre to be transferred to the Interested Party. It is obvious from the affidavit evidence and the annexures therein that the decision of the tribunal was read to the parties on 14th March 2007. The Motion therefore is not time-barred, hence the preliminary point lacks merit.
Having disposed of the preliminary point, let me now consider the merits of the Motion. The main issue raised and argued is to the effect that the Kahuro Land Disputes Tribunal determined a dispute relating to title to land yet it did not have jurisdiction to do so underSection 3(1) of the Land Disputes Tribunals Act No. 18 of 1990. There is no dispute that the Exparte Application herein is the registered proprietor of the parcel of land known as LOC. 8/GATURI/52. The decision of the Land Disputes Tribunal will lead to the subdivision of the aforesaid land thus the title has to be closed to enable a subdivision measuring 1 acre parceled out. That will obviously interfere with title to land. The Land Disputes Tribunal was not given that jurisdiction to determine a dispute relating to title to land, hence its decision is null and void ab initio.
In the end I find the Motion dated 29th July 2007 to be well founded. It is allowed as prayed.
Dated and delivered at Nyeri this 29th day of July 2011.
J. K. SERGON
JUDGE