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ELCAllowedJudicial Review Application (Notice of Motion dated 31st May 2011)· [2016] KEELC 760 (KLR)

Republic v Kuria West District (Kehancha Division) Land Disputes Tribunal & 2 others Ex-parte Jacob Gitigori [2016] KEELC 760 (KLR)

High Court of Kenya
23 June 2016
2,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The High Court in Kisii quashed a Land Disputes Tribunal award ordering compensation, confirming tribunals cannot make compensation orders.

What this practically means

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Executive summary

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The ex parte applicant sought judicial review orders of certiorari and prohibition to quash the award of the Kuria West District (Kehancha Division) Land Disputes Tribunal in Tribunal Case No. 8 of 2010 and the Senior Resident Magistrate's judgment of 10th February 2011 adopting that award in Kehancha SRM's LDT No. 10 of 2010, concerning land parcel Bukira/Buhirimonono/341. The Tribunal had directed that the land remain registered in the name of Noreri Chacha, that the objector (the interested party) be compensated by the claimant for monies used to bail out the land, and made provision in the event the registered owner was deceased. The applicant contended the Tribunal acted ultra vires section 3(1) of the Land Disputes Tribunal Act by ordering compensation and by dealing with land of a deceased registered owner, a matter for the succession court. The interested party opposed, arguing the applicant had initiated the tribunal complaint and thus acceded to its jurisdiction, and that compensation was incidental. The court held that section 3(1) confines tribunals to boundary disputes, claims to occupy or work land, and trespass; an order for compensation exceeded that jurisdiction and rendered the award a nullity, following John Rotich v Chairman Roret Land Dispute Tribunal. Relying on Desai v Warsama and Macfoy v United Africa Co. Ltd, the court held the magistrate's adoption of a void award could not legitimize it. The Notice of Motion dated 31st May 2011 was allowed in terms of prayers 1 and 2, with costs to the applicant payable by the interested party.

Key legal issues

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01

Jurisdiction of Land Disputes Tribunals to award compensation

Holding

Section 3(1) of the Land Disputes Tribunal Act limits tribunals to boundary disputes, claims to occupy or work land, and trespass; ordering compensation exceeded jurisdiction and rendered the award a nullity

Reasoning

The court examined section 3(1) and found the award directing the applicant to compensate the interested party fell outside the three categories of disputes. Following John Rotich v Chairman Roret Land Dispute Tribunal, the judge held the tribunal's plenitude of powers does not encompass compensation orders, and such excess rendered the award void.

p. 4
02

Effect of adoption of a void award by the magistrate's court under section 7

Holding

Adoption under section 7 cannot breathe life into a void award; a judgment cannot flow from nothing

Reasoning

Section 7 contemplates filing of a valid award. A void award is a nullity that requires no setting aside, and every proceeding founded on it is equally bad. The magistrate's adoption and decree of 10th and 11th February 2011 therefore conferred no legitimacy on the tribunal's null award.

p. 4
03

Estoppel by acquiescence to tribunal jurisdiction (interested party's argument)

Holding

Rejected implicitly; the court found the tribunal wholly without jurisdiction notwithstanding that the applicant himself lodged the complaint

Reasoning

The interested party argued that the applicant, having initiated the tribunal complaint, had acceded to its jurisdiction and could not later deny it. The court did not accept this, applying the principle that no party can confer jurisdiction on a body that lacks it by consent.

p. 4

Legal principles established

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  • A tribunal acting beyond its statutory jurisdiction makes a nullity which cannot be validated by adoption as a judgment of the court
  • Land Disputes Tribunals have no jurisdiction to order compensation under section 3(1) of the Act

Court orders

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  1. 1.An order of certiorari quashing the decision of the Kuria West District (Kehancha Division) Land Disputes Tribunal Case No. 8 of 2010 and its adoption as judgment on 10th February 2011 in Kehancha SRM's LDT No. 10 of 2010
  2. 2.Prayers 1 and 2 of the Notice of Motion dated 31st May 2011 granted in full, including orders of prohibition
  3. 3.Costs of the application awarded to the ex parte applicant, payable by the interested party
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (judicial review jurisdiction of the High Court)

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 Kuria West District (Kehancha Division) Land Disputes Tribunal & 2 others Ex-parte Jacob Gitigori [2016] KEELC 760 (KLR)", Case Analysis (2016). Judicial Review Application (Notice of Motion dated 31st May 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/760/eng@2016-06-23

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