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Court of AppealDismissedCivil Appeal No. 259 of 2000· [2004] KECA 102 (KLR)

M'Marete v Republic & 3 others [2004] KECA 102 (KLR)

Court of Appeal of Kenya
5 November 2004
EOE.O. O’KubasuEGE.M. GithinjiPWP.N. Waki
1,582 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that local Land Disputes Tribunals cannot award ownership of registered land — that power belongs only to the courts.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (O’Kubasu, Githinji and Waki JJ.A) dismissed an appeal against a judicial review ruling of the High Court at Meru (Aganyanya J) quashing an award of the Central Meru Land Disputes Tribunal. In Land Case No. 31 of 1998 the Tribunal awarded parcels Nyaki/Mulathankari/1680 and 1681 — registered under the Registered Land Act (Cap. 300) — to Beatrice M’Marete, the present appellant. John Gitonga Mbui, the ex-parte applicant, moved for certiorari and prohibition under Order LIII of the Civil Procedure Rules, contending that the Tribunal lacked jurisdiction, breached natural justice and was improperly constituted. Aganyanya J allowed the application on 12 June 2000, holding the Tribunal 'the wrong forum' for the complaint, and quashed the award, with each party bearing its own costs. The appellant advanced five grounds, principally that the Judge erred in quashing the award and in holding the Tribunal lacked jurisdiction; counsel also argued the application should have been brought by chamber summons. The Court of Appeal framed a single main issue: whether the Tribunal had jurisdiction. Construing section 3(1) of the Land Disputes Tribunals Act 1990, it held that jurisdiction extends only to disputes over division of or boundaries to land, claims to occupy or work land, and trespass. The dispute was a claim to ownership: the award could only be implemented by rectifying or cancelling title. The Tribunal therefore acted in excess of jurisdiction. Agreeing with the High Court, the Court dismissed the appeal and ordered each party to bear its own costs here and below, citing the Tribunal's want of jurisdiction and the family-land character of the dispute. The binding proposition: Land Disputes Tribunals cannot award or determine title to registered land.

Key legal issues

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01

Scope of the jurisdiction of Land Disputes Tribunals under section 3(1) of the Land Disputes Tribunals Act 1990

Holding

A Land Disputes Tribunal's jurisdiction is confined to civil disputes over the division of or boundaries to land, claims to occupy or work land, and trespass to land; a claim to ownership of registered land is outside its jurisdiction, and a purported award of registered parcels is in excess of jurisdiction.

Reasoning

Section 3(1) of the Land Disputes Tribunals Act 1990 enumerates exhaustively the civil disputes a Tribunal may hear and determine. The dispute concerned parcels registered under the Registered Land Act (Cap. 300). By awarding both parcels to the claimant, the Tribunal purported to confer an interest in registered land — an outcome achievable only through rectification or cancellation of title. That was a claim to ownership, not a boundary, occupancy or trespass dispute. The Tribunal therefore acted in excess of its statutory jurisdiction, and the High Court was entitled to quash the award.

p. 3
02

Supervisory jurisdiction of the High Court over inferior tribunals by way of certiorari and prohibition

Holding

The High Court may call in and quash, or prohibit, the decisions of an inferior tribunal where the tribunal acts without or in excess of jurisdiction or in contravention of the rules of natural justice; the Court of Appeal expressly endorsed this statement of principle.

Reasoning

The Court of Appeal expressly adopted the High Court judge's formulation, describing it as 'what we consider correct observations'. Because the Tribunal acted in excess of jurisdiction, certiorari lay to call in and quash its award, and prohibition could restrain it. The Court held the superior court 'cannot be faulted' for allowing the application and granting the reliefs sought, since the Tribunal's award was a nullity for want of jurisdiction.

p. 2
03

Effect of a Tribunal award on title to registered land

Holding

An award conferring an interest in registered land can only take effect through rectification or cancellation of title, which demonstrates that the Tribunal was in substance determining ownership — a matter beyond its competence.

Reasoning

The parcels were registered under the Registered Land Act (Cap. 300). The Court reasoned that awarding the land meant the claimant acquired an interest by virtue of the award, and that to give the ruling effect she would have to rectify or cancel the titles. That consequence convinced the Court the award was in substance a determination of title to registered land, which fell outside the categories in section 3(1) and outside the Tribunal's competence.

p. 3

Legal principles established

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  • Land Disputes Tribunals have no jurisdiction to determine ownership of, or to award, parcels of registered land; their jurisdiction under section 3(1) of the Land Disputes Tribunals Act 1990 is confined to disputes over division of or boundaries to land, claims to occupy or work land, and trespass to land, and a purported award of registered land is in excess of jurisdiction.
  • The High Court may call in and quash, or prohibit, the decisions of an inferior tribunal where the tribunal acts without or in excess of its jurisdiction or in contravention of the rules of natural justice — a statement of the High Court expressly endorsed as correct by the Court of Appeal.
  • An award by a tribunal conferring an interest in registered land can only be implemented through rectification or cancellation of title, which confirms that such a claim is one of ownership and falls outside a Land Disputes Tribunal's statutory competence.

Court orders

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  1. 1.Appeal dismissed — 'we find no merit in this appeal and we order that the same be and is hereby dismissed.'
  2. 2.Each party to bear its own costs in the Court of Appeal and in the High Court — 'each party bears its own costs here and in the court below. We so order.'

Authorities

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Legislation

  • Land Disputes Tribunals Act 1990 (No. 18 of 1990)Section 3(1)
  • Land Disputes Tribunals Act 1990 (No. 18 of 1990)Section 4
  • Land Disputes Tribunals Act 1990 (No. 18 of 1990)Section 8
  • Registered Land Act (Cap. 300 Laws of Kenya)Section 30
  • Registered Land Act (Cap. 300 Laws of Kenya)Section 143
  • Civil Procedure RulesOrder LIII rules 3, 4, 5 and 6
On appeal from
High Court of Kenya at Meru
H.C. Misc. Application No. 92 of 1999
Jurisdiction invoked
Not expressly stated in the judgment. The underlying judicial review application in the High Court was brought under Order LIII rules 3, 4, 5 and 6 of the Civil Procedure Rules; the judgment does not cite the provision conferring the right of appeal to the Court of Appeal.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "M'Marete v Republic & 3 others [2004] KECA 102 (KLR)", Case Analysis (2004). Civil Appeal No. 259 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/102/eng@2004-11-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.