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ELCAllowedJudicial Review Notice of Motion dated 3/11/2011 (D.O. Case No.50 of 2011; LDT Case No.18 of 2011)· [2013] KEELC 143 (KLR)

Republic v Chairman Kandara District Land Disputes Tribunal & another Interested Party John Gachoka Charagu Exparte Godfrey Mungai [2013] KEELC 143 (KLR)

High Court of Kenya
8 August 2013
1,441 words in judgment
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The bottom line

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Kenya's High Court quashed a Land Disputes Tribunal award because tribunals cannot decide land sale contract disputes — only boundary, trespass and occupation claims.

What this practically means

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Executive summary

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This was a judicial review application by Godfrey Mungai, the exparte applicant, seeking certiorari to quash an award of the Kandara District Land Disputes Tribunal in LDT Case No.18 of 2011 and the order of the Chief Magistrate's Court, Thika in D.O. Case No.50 of 2011 adopting that award. The Tribunal, in a claim by John Gachoka Charagu (interested party), had ordered the applicant to transfer 0.20 ha from land parcel Loc.4/Ng'araria/1045 on payment of Kshs.97,800, the dispute being rooted in an alleged sale agreement by the interested party's deceased father. The court held that section 3 of the repealed Land Disputes Tribunals Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass, and that a claim for breach of contract for sale of land fell outside that jurisdiction, rendering the Tribunal's decision ultra vires and a nullity quashable under sections 8 and 9 of the Law Reform Act. The court, following decisions of Majanja J and the Court of Appeal, further found that the Tribunal was improperly constituted, sitting with a chairman and six members contrary to section 4, and that one member had not signed the award, making it null and void ab initio. Leave granted earlier did not operate as a stay issue, and the substantive Notice of Motion dated 3 November 2011 succeeded. Both the Tribunal proceedings and award and the magistrate's adoption order were quashed, with costs awarded to the exparte applicant against the respondents and the interested party. Judgment delivered at Nyeri on 8 August 2013 by A. Ombwayo J.

Key legal issues

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01

Jurisdiction of Land Disputes Tribunals over contract claims

Holding

The Tribunal acted ultra vires and its decision was a nullity because breach of contract falls outside section 3 of the LDT Act.

Reasoning

Section 3 of the repealed LDT Act No.18 of 1990 confined tribunals to boundary disputes, claims to occupy or work land, and trespass. The dispute before the Kandara Tribunal was essentially a contractual claim for completion of a sale of land and payment of the balance, which the Tribunal had no statutory power to determine. Any decision made in excess of that jurisdiction is ultra vires and a nullity, which the High Court may quash under sections 8 and 9 of the Law Reform Act.

p. 3
02

Composition of the Tribunal

Holding

The Tribunal sitting with seven persons (chairman and six members) contravened section 4, rendering the award void ab initio.

Reasoning

Section 4 of the LDT Act required a chairman plus either two or four elders. Here the chairman and six members sat, exceeding the permitted number, and one member did not sign the award. This irregularity independently invalidated the proceedings and the award, reinforcing the court's finding that the decision was illegal and liable to be quashed by certiorari.

p. 2
03

Dispute concerning an estate without letters of administration

Holding

The interested party referred a dispute on behalf of a deceased's estate without letters of administration; this featured in the grounds for review though not separately adjudicated in the dispositive reasoning.

Reasoning

The applicant argued that the interested party prosecuted the claim on behalf of the estate of Charagu Gachoka without obtaining letters of administration as required by the Law of Succession Act, Cap 160. The court recorded this ground in the motion but its findings rested principally on lack of jurisdiction and improper constitution of the Tribunal, so this ground was not expressly determined in the judgment's conclusions.

p. 2

Legal principles established

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  • Land Disputes Tribunals had no jurisdiction to determine claims of breach of contract for sale of land; such proceedings are ultra vires and nullities.
  • A Tribunal improperly constituted under section 4 of the LDT Act renders its award a nullity.

Court orders

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  1. 1.Order of certiorari issued quashing the proceedings and award of the Kandara District Land Disputes Tribunal dated 2/8/2011 in LDT Case No.18 of 2011
  2. 2.Order of certiorari issued quashing the proceedings and order of the Chief Magistrate's Court at Thika issued on 26/9/2011 and dated 27/9/2011 in D.O. Case No.50 of 2011
  3. 3.Costs of the application to be paid by the respondents and the interested party

Authorities

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Legislation

  • Land Disputes Tribunals ActSections 3 and 4
  • Law Reform Act Cap 26 Laws of KenyaSections 8 and 9
  • Law of Contract Act Cap 23 Laws of Kenyanull
  • Law of Succession Act Cap 160 Laws of Kenyanull
  • Registered Land Act Cap 300 Laws of Kenyanull

Cases cited (2)

  • Humphrey Kigotho Thiongo -VS- LDT at Makuyu and others
    H.C. J.R/ELC No.21 of 2011 (Nairobi)
  • Asman Maloba Wepukhulu and Wycliffe Barasa and Francis Wakwabubi Biketi
    C.A. C.A. No.157 of 2001 (Kisumu)
Jurisdiction invoked
Sections 8 & 9, Law Reform Act Cap 26 Laws of Kenya

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, "Republic v Chairman Kandara District Land Disputes Tribunal & another Interested Party John Gachoka Charagu Exparte Godfrey Mungai [2013] KEELC 143 (KLR)", Case Analysis (2013). Judicial Review Notice of Motion dated 3/11/2011 (D.O. Case No.50 of 2011; LDT Case No.18 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/143/eng@2013-08-08

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