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ELCPartially AllowedJudicial Review Application (Notice of Motion dated 4th November 2011)· [2016] KEELC 1050 (KLR)

Republic v Chairman Mwea Land Disputes Tribunal & 2 others Ex-parte Judy Njeri Micere [2016] KEELC 1050 (KLR)

High Court of Kenya
16 March 2016
BOB.N. Olao
3,179 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's award of two acres of registered private land, confirming tribunals cannot order sub-division of titled property.

What this practically means

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Executive summary

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The applicant, registered proprietor of L.R Kiine/Sagana/3362, sought an order of certiorari to quash the award of the Mwea Land Disputes Tribunal and the order of the Wanguru Senior Resident Magistrate dated 26th March 2009 adopting that award as judgment in Arbitration Case No. 3 of 2009. She had sued the 3rd respondent for trespass before the Tribunal, but the Tribunal instead awarded him two acres out of her registered land, relying on an uncompleted sale agreement between him and the applicant's step-mother. The 3rd respondent raised a preliminary objection that the application breached the six-month limit in Order 53 Rule 2 of the Civil Procedure Rules. The court dismissed that objection, holding that the Chamber Summons for leave, filed on 11th September 2009, was within six months of the adoption of the award on 26th March 2009, the undated award having become subsumed in the adoption order. On the merits, applying established Court of Appeal authority, the court held that although the applicant's trespass complaint was within the Tribunal's jurisdiction under Section 3(1) of the Land Disputes Tribunal Act, the Tribunal exceeded that jurisdiction by ordering a sub-division of registered land. Such an award was a nullity, and judicial review concerns the process, not the merits; sympathy for the 3rd respondent, who had built on and buried his wife on the land, could not cure the want of jurisdiction. The court quashed both the Tribunal's award and the Magistrate's adopting order but, holding the applicant the author of the misfortune, denied her costs.

Key legal issues

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01

Time limitation under Order 53 Rule 2 for certiorari

Holding

The application was filed within the six-month period

Reasoning

The award was adopted as judgment by the Wanguru SRM on 26th March 2009. The Chamber Summons seeking leave was filed on 11th September 2009, which fell within six months of that adoption, albeit narrowly. The Tribunal's undated award became subsumed in the adoption order, so time ran from the adoption.

p. 3
02

Whether the Tribunal exceeded its jurisdiction under Section 3(1) of the Land Disputes Tribunal Act

Holding

Yes - the Tribunal had jurisdiction over trespass but exceeded it by awarding land and ordering sub-division

Reasoning

The applicant's complaint was one of trespass to land, which was within the Tribunal's statutory mandate. However, the Tribunal proceeded to carve out two acres of registered land for the 3rd respondent, an order for sub-division of registered land which the Court of Appeal has held is beyond a Land Disputes Tribunal's powers. Jurisdiction cannot be founded on sympathy or equity.

p. 4
03

Remedy for want of jurisdiction

Holding

Certiorari lies to quash the ultra vires award and the adopting order

Reasoning

Judicial review is concerned with the decision-making process, not merits. The Tribunal's award and the Magistrate's adoption were nullities for want of jurisdiction and had to be quashed notwithstanding the applicant's conduct and the 3rd respondent's sympathy-worthy position.

p. 6

Legal principles established

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  • A tribunal established under the repealed Land Disputes Tribunal Act has no jurisdiction to order sub-division of registered land
  • Where a court or tribunal has no jurisdiction, its decision is null and void
  • A court's jurisdiction flows only from the Constitution or legislation

Court orders

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  1. 1.An order of certiorari is issued moving into this Court for quashing the un-dated award of the Mwea Land Disputes Tribunal and the order of the Senior Resident Magistrate's Court Wanguru issued on 26th March 2009 in Arbitration Case No. 3 of 2009
  2. 2.The applicant was the author of this unfortunate state of affairs and so she is not entitled to costs

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Civil Procedure RulesOrder 53 Rule 2

Cases cited (6)

  • Pastoli vs Kabale District Local Government Council & Others
    2008 2 E.A 300
  • Jotham Amunavi vs The Chairman Sabatia Land District Disputes Tribunal
    C.A Civil Appeal No. 256 of 2002
  • Asman Maloba Wepukhulu & Another vs Francis Wakwabubi Biketi
    C.A Civil Appeal No. 157 of 2001
  • Sir Ali B.N. Salim vs Sharie Mohamed Shary
    (1938) K.L.R 9
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank & Two Others
    Application No. 2 of 2011 [2012] eKLR
  • Municipal Council of Mombasa vs Republic & Umoja Consultants
    C.A Civil Appeal No. 185 of 2001
Jurisdiction invoked
Judicial review jurisdiction of the High Court under Order 53 of the Civil Procedure Rules (certiorari against a subordinate court/tribunal decision)

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 Mwea Land Disputes Tribunal & 2 others Ex-parte Judy Njeri Micere [2016] KEELC 1050 (KLR)", Case Analysis (2016). Judicial Review Application (Notice of Motion dated 4th November 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1050/eng@2016-03-16

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