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ELCPartially AllowedJudicial Review Application (Eldoret) — number not stated in judgment· [2014] KEELC 128 (KLR)

Republic v Chairman, Uasin Gishu Land Disputes Tribunal & 2 Others, Kaptich Arap Morogo EX PARTE [2014] KEELC 128 (KLR)

Environment and Land Court
23 October 2014
2,529 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land tribunal overstepped by awarding 31 acres of registered private land; the Environment and Land Court quashed the award as void.

What this practically means

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Executive summary

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This was a judicial review application seeking prohibition, mandamus and certiorari in respect of a dispute over LR No. 5593, registered land under the Registration of Titles Act. The Uasin Gishu Land Disputes Tribunal had, on 28 June 2007, awarded the interested party 31 acres by purchase and ordered sub-division of the land into 13 portions. The award was adopted as judgment of the Chief Magistrate's Court on 26 July 2007, a decree issued, the Executive Officer signed Land Control Board forms, and the Soy-Turbo Land Control Board granted consent in December 2007. The ex-parte applicant (since deceased and substituted by his legal representatives) argued the Tribunal lacked jurisdiction, having decided ownership and ordered specific performance contrary to Section 3(1) of the Land Disputes Tribunal Act, and that the claim was time barred. Munyao Sila J construed the Motion, read with paragraphs 12 and 13 of the supporting affidavit, as substantially seeking certiorari, invoking Article 159(2)(d) to avoid procedural technicality, and held that failure to enjoin the Chief Magistrate was not fatal. The court held the Tribunal had no jurisdiction to determine ownership of registered land or award land to a litigant; its award was a nullity. Certiorari issued quashing the Tribunal's proceedings and award and all consequential orders, the parties were restored to their pre-Tribunal positions, and no orders as to costs were made given the Tribunal's repeal and its own error.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over ownership of registered land

Holding

The Tribunal had no jurisdiction to determine ownership or award 31 acres; its award was a nullity and was quashed by certiorari.

Reasoning

Section 3(1) of the Land Disputes Tribunal Act confined Tribunals to boundary divisions, claims to occupy or work land and trespass. A claim for specific performance / declaration of entitlement to 31 acres of registered land by purchase fell outside those heads. An award made without jurisdiction is a nullity regardless of its reasoning, following the Lillian S principle, and cannot be given effect.

p. 4
02

Whether pleadings in the supporting affidavit could supplement the Notice of Motion

Holding

The court construed the Motion as including the certiorari and mandamus prayers in paragraphs 12 and 13 of the supporting affidavit, applying substantive justice under Article 159(2)(d).

Reasoning

Although an affidavit is merely evidence and cannot supplement the orders in a motion in principle, the totality of the pleadings showed the applicant sought quashing of the Tribunal's award. No prejudice was shown since respondents had notice and an opportunity to respond; procedural technicality should not defeat substantive justice.

p. 3
03

Effect of failure to enjoin the Chief Magistrate

Holding

Failure to enjoin the Chief Magistrate was not fatal because quashing the Tribunal's award nullifies everything flowing from it, including the decree and LCB consents.

Reasoning

The decree and the Chief Magistrate's actions were founded on the award; once the award is declared null and void, all consequential acts fall automatically. The court declined to follow the Sammy Wycliffe Malesi decision on this point.

p. 3

Legal principles established

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  • The jurisdiction of Land Disputes Tribunals was confined to division/determination of boundaries, claims to occupy or work land, and trespass; they could not determine ownership of registered land or award land to a litigant.
  • Anything done out of jurisdiction is null and void, and consequential orders founded on a void award automatically fall.
  • Quashing a void award restores the parties to their pre-proceedings positions.

Court orders

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  1. 1.The proceedings and award of the Uasin Gishu Land Disputes Tribunal and all other subsequent orders made in executing the award and/or decree are hereby quashed
  2. 2.The parties are put back to the positions that they were in prior to the proceedings before the Uasin Gishu Land Disputes Tribunal
  3. 3.There shall be no orders as to costs

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 3(1)
  • Environment and Land Court ActAct No. 19 of 2012 (repealing the Land Disputes Tribunal Act)
  • Registration of Titles Act
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (5)

  • Judethieus Kiplagat Malakwen v Rift Valley Land Disputes Tribunal
    Court of Appeal at Eldoret, Civil Appeal No. 82 of 2006
  • Mcfoy v United Africa Co Ltd
    (1961) 3 All ER 1169
  • Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Ltd
    (1989) KLR 1
  • Sammy Wycliffe Malesi v Central Division Land Disputes Tribunal & 2 Others
    Misc. Application No. 55 of 2007 (2011) eKLR
  • Republic v Attorney General & Another
    Misc. Application No. 59 of 2002, (2005) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court (now exercised by the Environment and Land Court); Article 159(2)(d) 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, "Republic v Chairman, Uasin Gishu Land Disputes Tribunal & 2 Others, Kaptich Arap Morogo EX PARTE [2014] KEELC 128 (KLR)", Case Analysis (2014). Judicial Review Application (Eldoret) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/128/eng@2014-10-23

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