Kakamega County Council v 1. The Chairman Tiriki East Lands Disputes Tribunal 2. Jotham Aseka Maheri 3. Laban Aseka 4. John Mukalushi
The bottom line
#Kenya's Court of Appeal ruled that a Land Disputes Tribunal had no authority to award registered land to people who were not the registered owners and were never even told about the case.
What this practically means
#Executive summary
#Key legal issues
#Power of a judge of concurrent jurisdiction to nullify leave to apply for judicial review granted by another judge
Kariuki, J. acted wrongly in declaring the leave a nullity; the respondents had not challenged the grant of leave, and a judge cannot sit on appeal over a decision of a judge of equal jurisdiction.
Leave had been granted by a different judge after the appellant's chamber summons. The 2nd, 3rd and 4th respondents never took steps to challenge that decision. Judicial review is a special jurisdiction dealing with the decision-making process; any review of a concurrent judge's decision is circumscribed. The judge below therefore exceeded his powers by treating the leave as a nullity and striking out the motion.
Jurisdiction of a Land Disputes Tribunal over ownership of registered land where the registered owner was not a party
The tribunal's proceedings were irregular because the registered owner of the land was neither a party nor given notice, and the tribunal purported to direct registration of the land in favour of parties who were not the registered owners; the decision was liable to be quashed.
The land was registered in the appellant's name, yet the tribunal determined ownership between parties who were not registered owners and directed the Lands Department to register the land in the claimants' names. Given that section 7(2) of the Land Disputes Tribunals Act allows the magistrate's court to enter judgment in accordance with the tribunal's decision, there was a real risk of transfer of the land to persons not entitled to it under the law.
Whether the appeal court should remit the judicial review motion for rehearing or determine it finally
Although the matter would ordinarily be remitted, the court exercised its powers under rule 31 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act to quash the tribunal's decision finally.
The judge below never dealt with the merits of the judicial review motion, so ordinarily a rehearing would follow. However, the overriding objective mandated by sections 3A and 3B of the Appellate Jurisdiction Act required just, expeditious, proportionate and affordable resolution. Remitting the matter would increase expense and delay; the court therefore concluded the matter itself by quashing the tribunal decision.
Legal principles established
#- A judge of concurrent jurisdiction has no power to sit on appeal against, or interfere with, a decision of another judge granting leave to apply for judicial review, unless the parties move to challenge that decision through proper review procedures.
- Among the grounds for an order of certiorari are that the decision-making authority lacked or exceeded jurisdiction, acted unreasonably, illegally, with procedural impropriety, or against the rules of natural justice.
- Under the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, the Court of Appeal may finally determine a matter instead of remitting it to the High Court where remittal would increase expense and delay.
- A decision made by a tribunal over a dispute affecting a party who was neither before it nor given notice, in respect of land registered in that party's name, is irregular and shall not stand.
Court orders
#- 1.Appeal allowed
- 2.The High Court order dismissing (striking out) the appellant's notice of motion set aside
- 3.The decision of the Tiriki East Land Disputes Tribunal given on 24th April, 2002 brought before the High Court and quashed
- 4.Each party to bear its own costs
- On appeal from
- High Court of Kenya at Kakamega
- H.C. Misc. Appl. No. 2 of 2003
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (Cap 9), including sections 3(2), 3A and 3B, and rule 31 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakamega County Council v 1. The Chairman Tiriki East Lands Disputes Tribunal 2. Jotham Aseka Maheri 3. Laban Aseka 4. John Mukalushi", Case Analysis (2011). Civil Appeal No. 39 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/142/eng@2011-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.