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ELCPartially AllowedJudicial Review No. 18 of 2013· [2015] KEELC 230 (KLR)

Republic v Ndaragwa Division Land Dispute Tribunal Ex-Parte Muricho Ranching Co ( Ltd) & 2 others [2015] KEELC 230 (KLR)

Environment and Land Court of Kenya
23 September 2015
MSMunyao Sila
3,702 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed a Land Disputes Tribunal award because tribunals cannot decide who owns land.

What this practically means

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Executive summary

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The ex-parte applicant, Muricho Ranching Co Ltd, sought certiorari to quash a decree of 14 March 2013 by the S.P.M Court, Nyahururu, adopting an award of 13 September 2005 of the Ndaragwa Division Land Disputes Tribunal, which had awarded Eshiban Theuri Ngatia the right to occupy the suit property and ordered revocation of sub-divisions and amendments to the land register. The court framed five issues: res judicata, proper constitution of the tribunal, jurisdiction, breach of the right to be heard, and limitation of the adoption. It held the suit was not res judicata, the Nyeri consent having quashed only the Appeals Committee award. On constitution, it accepted that tribunals exist only per registration district under Section 4(1) of the Land Disputes Tribunal Act and no Ndaragwa Division Tribunal was gazetted. Its core finding was that the tribunal lacked jurisdiction: the real dispute was over title to land, beyond Section 3(1) of the LDTA, and reserved by Section 159 of the Registered Land Act to the High Court or Magistrates' Courts; the Kirinyaga ex-parte Kariuki authority was respectfully not followed. The court also found a breach of natural justice because the ten proprietors of the subdivided parcels were never made parties. However, the six-year limitation in Section 4(1)(c) of the Limitation of Actions Act did not apply, as 'award' there means an arbitral award. The decree was quashed by certiorari, the award fell with it, and the court, following the parties' earlier consent practice, made no orders as to costs.

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata; the Nyeri proceedings concerned the Appeals Committee award, quashed by consent, not the Tribunal award.

Reasoning

The court distinguished the subject matter of the Nyeri High Court Misc. Application from the present motion. The consent quashing the Appeals Committee award did not adjudicate the validity of the original Tribunal award, so the present challenge to the Tribunal award was not previously determined.

p. 4
02

Whether the Tribunal was properly constituted

Holding

The point raised by the applicant is valid in principle - tribunals exist per registration district under Section 4(1) of the LDTA, and there was no gazetted 'Ndaragwa Division Land Disputes Tribunal'.

Reasoning

Section 4(1) of the LDTA provided for a tribunal for every registration district. Ndaragwa was not a registration district; gazetted members fell under Nyandarua Registration District. Had they sat as the Nyandarua District Tribunal sitting at Ndaragwa Division, the difficulty would have been avoided.

p. 4
03

Jurisdiction of the Tribunal over the dispute

Holding

The Tribunal had no jurisdiction because the dispute concerned title to land, not occupation, boundaries, division or trespass under Section 3(1) of the LDTA.

Reasoning

Although the award was couched in occupation terms, the real dispute was ownership. Adverse possession claims under Section 38 of the Limitation of Actions Act lay in the High Court under the then-operative Order XXXVI of the Civil Procedure Rules. Section 159 of the Registered Land Act reserved title disputes to the High Court and, within value limits, Magistrates' Courts. The Kirinyaga ex-parte Kariuki decision was respectfully not followed.

p. 5
04

Breach of the right to be heard

Holding

There was a clear breach of natural justice because the owners of the subdivided parcels, whose proprietorship the award would affect, were never parties.

Reasoning

The suit property had been subdivided and titles issued to ten members who were not parties to the tribunal proceedings. A determination affecting their proprietorship required them to be litigants. Their silence and failure to sue did not amount to acquiescence or waiver of the right to be heard.

p. 5
05

Whether adoption of the award was time barred

Holding

Section 4(1)(c) of the Limitation of Actions Act does not apply; 'award' means an arbitral award, not a Tribunal award, so the adoption was not time barred.

Reasoning

The definition of 'award' in Section 2 of the Limitation of Actions Act ties Section 4(1)(c) to arbitrator awards under the Arbitration Act or foreign awards. The six-year limitation therefore did not apply to the Tribunal award, and the delay was explained by the appeal and subsequent judicial review proceedings.

p. 6

Legal principles established

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  • Land Disputes Tribunals had no jurisdiction to adjudicate disputes over title to land; such disputes were reserved to the High Court or Magistrates' Courts under Section 159 of the Registered Land Act.
  • A decree adopting an award made without jurisdiction is liable to be set aside and must be quashed.
  • Proprietors affected by a tribunal determination must be joined as parties, not merely heard as witnesses; failure to do so breaches natural justice.

Court orders

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  1. 1.An order of certiorari quashing the decree given on 14 March 2013 by the S.P.M Court, Nyahururu, which adopted the award of the Nyahururu (Ndaragwa) Division Land Disputes Tribunal in Case No. 7 of 2004.
  2. 2.The award of the Land Disputes Tribunal falls with the decree and cannot be enforced.
  3. 3.No orders as to costs.

Authorities

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Legislation

  • Limitation of Actions ActCAP 22, Sections 2, 4(1), 4(1)(c), 38
  • Land Disputes Tribunal ActSections 3(1), 4, 4(1) (now repealed)
  • Registered Land ActCAP 300, Section 159 (now repealed)
  • Environment and Land Court Act2011
  • Land Registration Act2012
  • Arbitration Act
  • Arbitration (Foreign Awards) Act
  • Civil Procedure RulesOrder XXXVI (then operative)
  • Kenya Gazette Notice No. 883311 December 2003

Cases cited (7)

  • R vs Ndaragwa Land Disputes Tribunal & Another, ex-parte Miriam Wambui Mwangi (Nakuru High Court Misc. Application No. 83 of 2009)
    Nakuru High Court Misc. Application No. 83 of 2009
  • R vs Ol' Joro'Orok Division Land Disputes Tribunal & Others
    Nakuru High Court, Judicial Review No. 52 of 2012
  • R vs Ol'Kalou Land Disputes Tribunal & Another ex-parte Hannah Wanjiku Mwangi
    Nyeri High Court, Misc. Application No. 11 of 2008
  • R vs Ngarua Land Disputes Tribunal & 2 Others ex-parte Francis Ndukui Kinuthia
    Nakuru High Court Judicial Review Application No. 45 of 2011
  • Ogutu & Another vs Okumu
    (1986) KLR 780
  • Gichuki v Gichuki
    Civil Appeal No. 21 of 1981
  • Republic vs Chairman Land Disputes Tribunal, Kirinyaga District & Another ex-parte Kariuki
    (2005) 2 KLR 10
Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court under order of certiorari (leave granted 19 April 2013)

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 Ndaragwa Division Land Dispute Tribunal Ex-Parte Muricho Ranching Co ( Ltd) & 2 others [2015] KEELC 230 (KLR)", Case Analysis (2015). Judicial Review No. 18 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/230/eng@2015-09-23

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