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ELCPartially AllowedJudicial Review application (substantive Notice of Motion dated 13th December 2006), ex High Court Embu, transferred· [2016] KEELC 185 (KLR)

Republic v Attorney General & 5 others Ex-parte Elijah Kimuru Kathoroko [2016] KEELC 185 (KLR)

High Court of Kenya
25 November 2016
2,934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicant, registered proprietor of land parcel No. INOI/THAITA/410, obtained leave on 27th November 2006 to seek judicial review of the Kirinyaga District Land Disputes Tribunal's award giving the 6th respondent 3 acres of his land, an award adopted by the Senior Resident Magistrate Kerugoya in L.D.T Case No. 83 of 2006. An application by the 6th respondent to set aside the leave was dismissed by W. Karanja J. on 1st July 2009. The substantive notice of motion sought mandamus (restoration of the land), certiorari (quashing the Tribunal's award and its adoption) and prohibition against registration of dealings and trespass. The respondents filed grounds of opposition; the 6th respondent denied service and alleged abuse of process. Only the applicant filed submissions. The court, per B.N. Olao J., first dismissed the service complaint, holding the 6th respondent's attempt to strike out the motion proved service. On the merits, the court found no breach of natural justice since the Tribunal record showed the applicant and his witness were heard. However, the Tribunal, limited by Section 3(1) of the repealed Land Disputes Tribunal Act to boundary, occupation and trespass disputes, had no power to order sub-division of registered land; its award and the Magistrate's adoption of it were nullities. Certiorari issued quashing both. Mandamus was refused as no public duty was breached and mandamus cannot confer title; prohibition was unnecessary as nothing remained capable of execution; an injunction was unavailable in judicial review. Costs were awarded to the applicant against the 1st, 5th and 6th respondents.

Key legal issues

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01

Breach of natural justice by the Tribunal

Holding

No breach - the record shows the applicant was heard and called a witness

Reasoning

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.

p. 4
02

Whether the Tribunal exceeded its jurisdiction

Holding

Yes - the award subdividing the suit land was in excess of jurisdiction and a nullity

Reasoning

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.

p. 5
03

Service of the notice of motion on the 6th respondent

Holding

Complaint of non-service dismissed as unfounded

Reasoning

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.

p. 4
04

Availability of mandamus and prohibition

Holding

Mandamus refused; prohibition unnecessary; injunction not available in judicial review

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.The applicant to have the costs of the application, to be met by the 1st, 5th and 6th respondents

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Registered Land Act (repealed)Chapter 300 Laws of Kenya
  • Civil Procedure RulesOrder 53 Rule 3(2)

Cases cited (11)

  • Pastoli vs Kabale District Local Government Council & Others
    2008 2 E.A 300
  • Municipal Council of Mombasa & Umoja Consultants Ltd
    C.A Civil Application No. 185 of 2001 (2001 K.L.R)
  • M'Marete vs Republic & Three Others
    C.A Civil Appeal No. 259 of 2004 (2004) e K.L.R
  • Jotham Amunavi vs The Chairman Sabatia Land Disputes Tribunal & Another
    C.A Civil Appeal No. 256 of 2002 (Kisumu)
  • Joseph Malakwen Lelei & Another vs Rift Valley Land Disputes Appeal Committee & Two Others
    2014 e K.L.R
  • Macfoy vs United Africa Co. Ltd
    1961 3 ALL E.R
  • Re: Continental Credit Finance Ltd
    (2003) 2 E.A 399
  • Owners of Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Limited
    1989 K.L.R 1
  • Kenya National Examinations Council vs Republic Ex-Parte Geoffrey Gathenji Njoroge & Others
    1997 e K.L.R (Civil Appeal No. 266 of 1996)
  • Lucy Mirigo & Others vs Minister for Lands
    C.A Civil Appeal No. 277 of 2011 (Nyeri) (2014) e K.L.R
  • Cortec Mining Kenya Limited vs Attorney General & Others
    C.A Civil Application No. 119 of 2015 (NBI) (2015) e K.L.R
Jurisdiction invoked
Judicial review jurisdiction of the High Court (certiorari, mandamus, prohibition) under Order 53 of the Civil Procedure Rules

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 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.