Republic v Attorney General & 5 others Ex-parte Elijah Kimuru Kathoroko [2016] KEELC 185 (KLR)
The bottom line
#Kenya's High Court quashed a Land Disputes Tribunal award that subdivided registered land, confirming such tribunals had no power to decide land ownership.
What this practically means
#Executive summary
#Key legal issues
#Breach of natural justice by the Tribunal
No breach - the record shows the applicant was heard and called a witness
The court examined the Tribunal record dated 21st September 2006 and found the applicant was heard and called his witness Charles Munene Kageria. The ground of procedural impropriety therefore failed on the evidence; the complaint that the Tribunal refused to hear the applicant was contradicted by the record of proceedings.
Whether the Tribunal exceeded its jurisdiction
Yes - the award subdividing the suit land was in excess of jurisdiction and a nullity
Section 3(1) of the repealed Land Disputes Tribunal Act limited the Tribunal to disputes over boundaries, claims to occupy or work land, and trespass. The Tribunal instead awarded 3 acres of registered land to the 6th respondent, an award of ownership contrary to the settled position in M'Marete and Lelei. Both the award and its adoption by the Magistrate's Court were therefore quashed by certiorari.
Service of the notice of motion on the 6th respondent
Complaint of non-service dismissed as unfounded
The 6th respondent claimed she was not served as required by Order 53 Rule 3(2). The court found that she had applied to strike out the notice of motion dated 13th December 2006, which showed she was duly served, and further that her application to set aside the leave had been dismissed with costs by W. Karanja J. on 1st July 2009.
Availability of mandamus and prohibition
Mandamus refused; prohibition unnecessary; injunction not available in judicial review
There was no evidence of failure to perform a public duty, and mandamus cannot confer title. Having quashed the award by certiorari, no order remained capable of execution, so prohibition served no purpose, and an injunction cannot issue in judicial review proceedings per Cortec Mining. Judgment therefore was partial: certiorari only.
Legal principles established
#- A Land Disputes Tribunal established under the repealed Land Disputes Tribunal Act had no jurisdiction to order the sub-division of, or award portions of, registered land; such an award is a nullity
- Where a court or tribunal exercises a jurisdiction it does not possess, its proceedings and decisions are null and void, as are all resulting proceedings, decisions or awards
- Mandamus compels performance of a public duty imposed by statute and is not created to settle ownership disputes nor to create or confer title to land
- A court exercising judicial review powers cannot issue an order of injunction
Court orders
#- 1.The decision and award of the Kirinyaga District Land Disputes Tribunal dated 21st September 2006 and its adoption as a judgment of the Senior Resident Magistrate's Court in L.D.T Case No. 83 of 2006 on 4th October 2006 are called into the Court for purposes of quashing and are hereby quashed as they were arrived at in excess of jurisdiction
- 2.The applicant to have the costs of the application, to be met by the 1st, 5th and 6th respondents
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (certiorari, mandamus, prohibition) under Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & 5 others Ex-parte Elijah Kimuru Kathoroko [2016] KEELC 185 (KLR)", Case Analysis (2016). Judicial Review application (substantive Notice of Motion dated 13th December 2006), ex High Court Embu, transferred. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/185/eng@2016-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.