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Court of AppealPartially AllowedCivil Appeal No. 54 of 2013· [2016] KECA 703 (KLR)

Barasa W. Wabomba & another v Omunyin Kituyi & 2 others [2016] KECA 703 (KLR)

Court of Appeal of Kenya
4 March 2016
2,623 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a court cannot cancel your land title if you were never heard in the underlying case.

What this practically means

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Executive summary

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The appellants, Barasa W. Wabomba and the Catholic Diocese of Bungoma, Malaba Sub-Parish, appealed against a High Court ruling (Kibunja, J., 23 September 2013) dismissing their judicial review application for certiorari to quash a magistrate's ruling of 17 June 2010. The magistrate had ordered that title to North Teso/Kocholya/210 be reverted and all subsequent titles resulting from its subdivision be cancelled, giving effect to an award of the Amagoro (Teso District) Land Disputes Tribunal in favour of the 1st respondent, Kituyi, adopted as a court judgment in 2007 and upheld on appeal in 2009. The appellants contended that the magistrate exceeded his jurisdiction by cancelling over twenty registered titles on an application without a substantive suit; that the affected registered owners, including the 2nd appellant, were not party to or heard in the tribunal proceedings; that those titles were not before the tribunal; and that Kituyi's claim was time-barred under the Limitation of Actions Act. The Court of Appeal, per a single judgment of Musinga, Gatembu Kairu and Murgor, JJ.A, allowed the appeal. It held that the property did not exist at the start of the tribunal proceedings, having been subdivided in 1993, and that cancelling the titles of registered owners who were neither privy to nor heard in the proceedings breached the rules of natural justice, a recognised ground for certiorari. It set aside the High Court judgment and substituted an order allowing the appellants' notice of motion. The Court expressly declined to address the limitation question, since Civil Appeal No. 14 of 2009 on the magistrate's decision was pending before the High Court. Each party was ordered to bear its own costs of the appeal and of the High Court proceedings.

Key legal issues

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01

Whether the magistrate's decision of 17 June 2010 cancelling subsequent titles was made in breach of natural justice

Holding

Yes. The registered owners of the subdivisions, including the 2nd appellant, were not privy to or heard in the tribunal proceedings; cancelling their titles breached the rules of natural justice and was a ground for certiorari.

Reasoning

The tribunal proceedings concerned only North Teso/Kocholya/210, which had ceased to exist by 2006 following subdivisions and transfers. The Land Registrar's letter showed the property had changed hands to about twenty-nine people. The magistrate nevertheless ordered cancellation of all subsequent titles on an application by Kituyi alone, without hearing the affected registered owners. The Court held this was a process failure reviewable by certiorari, regardless of the merits of the underlying claim.

p. 5
02

Whether the High Court Judge erred in treating the magistrate's ruling as mere execution of the tribunal award

Holding

Yes. The Judge erred in holding that the magistrate was doing no more than giving effect to the tribunal award; the orders went beyond the award and affected non-parties.

Reasoning

The Judge had reasoned that the order of 17 June 2010 mirrored order 4 of the extracted tribunal award and was within the magistrate's execution powers under the Civil Procedure Rules. The Court of Appeal disagreed: because the cancellation impinged on titles of persons who were never heard, the decision was not protected as a mere execution step and the Judge's refusal of certiorari was erroneous.

p. 5
03

Limitation of Actions Act bar on the 1st respondent's claim

Holding

Not determined. The Court declined to express views that might embarrass the pending Civil Appeal No. 14 of 2009.

Reasoning

Although the appellants argued that Kituyi's claim, filed in 2006 over a 1974 first registration, was barred under Section 7 of the Limitation of Actions Act, the Court expressly refrained from deciding matters touching the substance of the claim because an appeal on the magistrate's decision was pending before the High Court.

p. 4

Legal principles established

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  • An order of certiorari will issue where a decision is made without or in excess of jurisdiction or in breach of the rules of natural justice
  • Judicial review is concerned with the process of decision-making, not the merits of the decision
  • A court executing a tribunal award may not cancel titles of registered owners who were neither party to nor heard in the tribunal proceedings; to do so breaches natural justice

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court dated 23rd September 2013 set aside
  3. 3.Substituted therewith an order allowing the appellants' notice of motion dated 16th October 2010 and filed on 18th October 2010 (certiorari application)
  4. 4.Each party to bear its own costs of the appeal and of the proceedings before the High Court
On appeal from
High Court of Kenya at Busia
HCC Misc. Application No. 79 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court judicial review decision (Constitution and Court of Appeal jurisdiction over appeals from the High Court; the judgment does not cite a specific provision)

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, "Barasa W. Wabomba & another v Omunyin Kituyi & 2 others [2016] KECA 703 (KLR)", Case Analysis (2016). Civil Appeal No. 54 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/703/eng@2016-03-04

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