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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 39 of 2005· [2011] KECA 142 (KLR)

Kakamega County Council v 1. The Chairman Tiriki East Lands Disputes Tribunal 2. Jotham Aseka Maheri 3. Laban Aseka 4. John Mukalushi

Court of Appeal of Kenya
29 July 2011
2,138 words in judgment
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The bottom line

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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

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Executive summary

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This appeal arose from a ruling of the High Court at Kakamega (Kariuki, J.) delivered on 26th November, 2004, striking out the Kakamega County Council's notice of motion for orders of certiorari and prohibition against the decision of the Tiriki East Land Disputes Tribunal over land known as Kakamega/Cheptulu/642, registered in the name of the appellant. The judge held that leave to apply for judicial review, granted by another judge on 17th December, 2002, was a nullity because it fell outside the six-month limitation period. The Court of Appeal allowed the appeal on two grounds. First, a judge of concurrent jurisdiction has no power to sit on appeal against another judge's decision granting leave, and the respondents had never challenged that grant. Secondly, the tribunal's proceedings were fatally irregular: the registered owner of the land was neither a party nor given notice, yet the tribunal purported to award the land to claimants who were not the registered owners, a decision which the magistrate's court could enforce as a judgment under section 7(2) of the Land Disputes Tribunals Act. Invoking rule 31 of the Court of Appeal Rules and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, the Court set aside the High Court order and quashed the tribunal's decision of 24th April, 2002 rather than remitting the matter for rehearing, finding remittal contrary to the just, expeditious and proportionate resolution of disputes. Because the appellant had partly contributed to the irregular proceedings by holding out the ACK Church - Cheptulu as owner of the land, each party was ordered to bear its own costs.

Key legal issues

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01

Power of a judge of concurrent jurisdiction to nullify leave to apply for judicial review granted by another judge

Holding

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.

Reasoning

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.

p. 3
02

Jurisdiction of a Land Disputes Tribunal over ownership of registered land where the registered owner was not a party

Holding

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.

Reasoning

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.

p. 3
03

Whether the appeal court should remit the judicial review motion for rehearing or determine it finally

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.The High Court order dismissing (striking out) the appellant's notice of motion set aside
  3. 3.The decision of the Tiriki East Land Disputes Tribunal given on 24th April, 2002 brought before the High Court and quashed
  4. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.