Fauzia Tariq Zubedi v Athman Hassan Awadh & 3 others [2013] KEELC 40 (KLR)
The bottom line
#Kenya's High Court voided a Land Tribunal's decision to cancel a land title because the owner was never heard, but ownership will now be decided in a separate adverse possession case.
What this practically means
#Executive summary
#Key legal issues
#Fair hearing before quasi-judicial body
The Tribunal's decision was null and void because the Petitioner, the registered owner, was never served or heard
Article 50 and natural justice require notice and an opportunity to be heard before an order prejudicing a person's rights. The 1st Respondent admitted he never served the Petitioner, whom he did not sue. The Court of Appeal authority Owuor Okungu vs Lazaro Onyango supports this. The decision made ten years after registration in the Petitioner's favour is a nullity.
Jurisdiction of Land Disputes Tribunals over registered land
The Tribunal acted ultra vires section 3 of the Land Disputes Tribunal Act in purporting to cancel all transactions and re-allocate registered land
The suit property was registered under the Registration of Titles Act; section 64 vests power to cancel titles only in the High Court. The Tribunal's mandate under section 3 of the Land Disputes Act does not extend to rectification by cancellation of registers or titles, so its award cancelling transactions and re-allocating the land was ultra vires and void, as were subsequent orders.
Limitation: judicial review remedies in a petition
The six-month limit under Order 53/the Law Reform Act does not bar judicial review orders sought in a constitutional petition under Article 23(1)(f)
The drafters included judicial review remedies in Article 23(1)(f) so that the Bill of Rights, including fair hearing rights, would not be defeated by the Law Reform Act limitation. The Petition was anchored on Articles 40, 47, 48 and 64, not Order 53, so the objection that it was filed out of time could not hold.
Adverse possession claim
The 1st Respondent's pending adverse possession suit (HCCC No. 28 of 2008) should proceed for hearing
Having set aside the Tribunal's award for want of jurisdiction and non-service, the question of proprietorship remains open and can only be resolved upon hearing the adverse possession claim already pending between the parties.
Legal principles established
#- A tribunal decision affecting a registered owner who was never heard is null and void
- Land Disputes Tribunals have no jurisdiction to cancel registered titles; under section 64 of the Registration of Titles Act only the High Court may order cancellation of a title
- Judicial review remedies may be sought in a constitutional petition under Article 23(1)(f), free of the six-month limitation in the Law Reform Act
Court orders
#- 1.An order of declaration that the 2nd Respondent acted ultra vires its statutory mandate in hearing and determining the 1st Respondent's complaint, and that the decision arising therefrom and all subsequent orders are illegal and null and void ab initio
- 2.The Respondents to pay the costs of the Petition
- Jurisdiction invoked
- Articles 22, 23(1)(f), 40, 47, 48 and 50 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fauzia Tariq Zubedi v Athman Hassan Awadh & 3 others [2013] KEELC 40 (KLR)", Case Analysis (2013). Petition filed 27th May 2011 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/40/eng@2013-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.