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ELCDismissedChief Magistrates Award No. 38 of 2008 (Nyeri) - Notice of Motion dated 27/8/2012· [2013] KEELC 145 (KLR)

Edward Maina Kariuki & Another v Wairimu Ndei [2013] KEELC 145 (KLR)

High Court of Kenya
25 September 2013
AOA. Ombwayo
481 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court ruled it cannot rewrite a magistrate's order adopted from a Land Disputes Tribunal award—the only route is a proper appeal.

What this practically means

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Executive summary

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The applicants, by a Notice of Motion dated 27/8/2012, sought rectification of an order issued by the Chief Magistrate's Court in Nyeri on 30/3/2011 in Chief Magistrates Award No. 38 of 2008, so that it would read that parcel Nyeri/Endarasha/73 be subdivided into two equal portions of 4.85 Hectares each, instead of being shared among the children, with title deeds issued respectively. They argued the matter had been finalised through all legal stages, that the Land Control Board had approved the subdivision into two equal portions, and that the District Surveyor was unable to subdivide using the existing order. The 2nd Applicant is the mother of the 1st Applicant. The respondent opposed, contending that the application sought to amend an adopted order and that the proper course was an appeal to the Appeals Committee and thereafter to the High Court. The court found that on 12/8/2008 the Kieni West Division Land Disputes Tribunal decided that the land registrar revoke all title deeds from the original parcel and that the land be shared equally among the children of Ndei; the Chief Magistrate's Court adopted the award and issued the order of 30/3/2011. Holding that the High Court has no power to rectify a decree or order of the Chief Magistrate's Court under the Land Disputes Tribunal Act No. 18 of 1990, and can only entertain an appeal from the Appeals Committee, the court found the application misconceived. The Chief Magistrate's order could not be rectified without quashing the Tribunal's decision. The application was dismissed with no order as to costs, being a family dispute.

Key legal issues

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Whether the High Court could rectify the Chief Magistrate's Court order adopted from the Land Disputes Tribunal award

Holding

The application is misconceived; the court lacks power to rectify the Chief Magistrate's order under the Land Disputes Tribunal Act.

Reasoning

The Kieni West Division Land Disputes Tribunal decided on 12/8/2008 that the land be shared equally amongst the children, and the Chief Magistrate's Court adopted the award on 3/3/2008, issuing an order on 30/3/2011. The applicants sought rectification of that order to reflect subdivision into two equal portions. The court held it has no power to rectify such a decree or order under the Land Disputes Tribunal Act No. 18 of 1990, and can only entertain an appeal from the Appeals Committee, which this is not. Rectification would require quashing the Tribunal's decision.

p. 2

Legal principles established

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  • The High Court has no power to rectify a decree or order of the Chief Magistrate's Court adopting a Land Disputes Tribunal award; only an appeal from the Appeals Committee lies to the High Court

Court orders

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  1. 1.The Notice of Motion dated 27/8/2012 is dismissed with no order as to costs

Authorities

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Legislation

  • Land Disputes Tribunal ActNot specified (Act No. 18 of 1990)
Jurisdiction invoked
Land Disputes Tribunal Act No. 18 of 1990 - the Court can only entertain an appeal from the Appeals Committee under that Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Edward Maina Kariuki & Another v Wairimu Ndei [2013] KEELC 145 (KLR)", Case Analysis (2013). Chief Magistrates Award No. 38 of 2008 (Nyeri) - Notice of Motion dated 27/8/2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/145/eng@2013-09-25

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