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ELCPartially AllowedPetition filed 27th May 2011 (number not stated in judgment)· [2013] KEELC 40 (KLR)

Fauzia Tariq Zubedi v Athman Hassan Awadh & 3 others [2013] KEELC 40 (KLR)

High Court of Kenya
8 November 2013
2,300 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Petitioner, registered owner since 1992 (registration recorded variously as 25th March 1992 and 16th June 1994) of subdivision no. 517 (original No. 489/3) Section IV Mainland North in Kilifi, petitioned under Articles 40, 47, 48 and 64 of the Constitution, seeking a declaration of ownership and a declaration that the 2nd Respondent, a District Land Disputes Tribunal, acted ultra vires in determining the 1st Respondent's complaint in Kikambala Division Land Tribunal Case No. 7 of 2004 without serving or hearing him. The Tribunal had cancelled all transactions over the land and re-allocated it to the 1st Respondent, who claimed to have lived on the land for over 70 years and admitted he sued Twahik Zubedi instead of the registered owner. The 1st Respondent opposed on three grounds: the availability of an appeal route, the six-month limitation for judicial review, and his pending adverse possession suit (HCCC No. 28 of 2008). Angote J held that a decision made against a registered owner without a hearing is null and void; that Land Disputes Tribunals had no jurisdiction to cancel registered titles, only the High Court having that power under section 64 of the Registration of Titles Act; and that judicial review remedies may be sought in a constitutional petition under Article 23(1)(f), free of the six-month Law Reform Act limitation. The Tribunal's decision was declared ultra vires, illegal and null and void ab initio, with costs to the Respondents. The court declined to declare ownership, deferring proprietorship to the pending adverse possession suit.

Key legal issues

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01

Fair hearing before quasi-judicial body

Holding

The Tribunal's decision was null and void because the Petitioner, the registered owner, was never served or heard

Reasoning

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.

p. 4
02

Jurisdiction of Land Disputes Tribunals over registered land

Holding

The Tribunal acted ultra vires section 3 of the Land Disputes Tribunal Act in purporting to cancel all transactions and re-allocate registered land

Reasoning

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.

p. 4
03

Limitation: judicial review remedies in a petition

Holding

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)

Reasoning

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.

p. 4
04

Adverse possession claim

Holding

The 1st Respondent's pending adverse possession suit (HCCC No. 28 of 2008) should proceed for hearing

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The Respondents to pay the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 17? No - Articles 22, 23(1)(f), 23(3)(f), 40, 47(1), 48, 50, 60(1)(b), 64
  • Land Disputes Tribunal ActSection 3
  • Registration of Titles Act, cap 281Section 64
  • Limitation of Actions Act, cap 22not specified
  • Law Reform Actnot specified
  • Civil Procedure RulesOrder 53
  • Universal Declaration of Human RightsArticle 17
  • African Charter on Human and Peoples' RightsArticle 14

Cases cited (6)

  • R Vs Chairman, Matungu Land Disputes Tribunal
    (2012) e KLR
  • Erick Okongo Omogeni Vs Independent Electoral and Boundaries Commission & 2 others
    (2013) e KLR
  • Adat Abdulrahani Hassan & 2 others Vs The Registrar of Titles & 2 others
    (2013) e KLR
  • Gulam Mariam Noordin Vs Julius Charo Karisa
    (2013) e KLR
  • Owuor Okungu vs Lazaro Onyango
    Civil Appeal No. 43 of 1982
  • Alex Malikha Wasubwa & 7 Others Vs Elias Nambakha Wamita & 4 others
    (2012) e KLR
Jurisdiction invoked
Articles 22, 23(1)(f), 40, 47, 48 and 50 of the Constitution of Kenya 2010

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, "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.