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ELCPartially AllowedJudicial Review Application (Notice of Motion dated 22nd November 2010), Kerugoya High Court· [2017] KEELC 642 (KLR)

Republic v Kirinyaga Central Division Land Disputes & 4 others Ex-parte Jacob Munyi Andrew [2017] KEELC 642 (KLR)

High Court of Kenya
8 December 2017
BOB.N. Olao
1,185 words in judgment
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The bottom line

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Kenya's High Court confirmed that Land Disputes Tribunals cannot cancel or sub-divide registered land titles - only the High Court can decide ownership disputes.

What this practically means

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Executive summary

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The Applicant, registered proprietor of land parcel Mutira/Kirimunge/582, sought certiorari to quash an award of the Kirinyaga Central Division Land Disputes Tribunal adopted as judgment of the Kerugoya Principal Magistrate's Court on 8 June 2010 in LDT Case No. 17 of 2010. His three brothers had complained before the Tribunal that the land, though registered in his name, belonged to their late father and that they were entitled to shares. The Tribunal agreed and awarded sub-division of the land, giving each brother 1.5 acres, and directed the Executive Officer and Land Registrar to effect the sub-division even without production of the old title. The application, filed on 22 November 2010 pursuant to leave granted by Wanjiru Karanja J, was unopposed; no replying affidavit or submissions were filed despite Gitonga D.N. Advocates appearing for the 3rd, 4th and 5th Respondents. Olao J held that under Section 3(1) of the repealed Land Disputes Tribunals Act, the Tribunal could only determine boundary disputes, claims to occupy or work land, and trespass; it had no jurisdiction to cancel title to registered land or order its sub-division. Relying on Amunavi, Municipal Council of Mombasa v Umoja Consultants and Pastoli, the court held the decision-making process was tainted with illegality. The Notice of Motion was allowed, the Tribunal's award and the adopting order were quashed, with no order as to costs.

Key legal issues

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01

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

Holding

Yes - the Tribunal's jurisdiction was limited to boundary disputes, claims to occupy or work land, and trespass; it had no power to cancel or interfere with title to registered land or order its sub-division and issuance of new titles

Reasoning

Section 3(1) of the repealed Act circumscribed the Tribunal's jurisdiction to civil disputes over division/boundaries of land, occupation or working of land, and trespass. The Tribunal purported to cancel the Applicant's title and sub-divide registered land among the Respondents, a matter reserved to the High Court or Resident Magistrate's Court under Section 159 of the Registered Land Act. Its award was therefore ultra vires and void.

p. 3
02

Whether certiorari should issue to quash the Tribunal's award and the adopting order

Holding

Yes - the decision-making process was tainted with illegality, so certiorari issued notwithstanding that the claim may have had merit as family land

Reasoning

Following Municipal Council of Mombasa v Umoja Consultants and Pastoli, judicial review examines the decision-making process rather than merits. The Applicant demonstrated that the Tribunal proceeded without jurisdiction, an illegality. Even if the land was family land in which the Respondents had a share, the Tribunal could not lawfully cancel title to registered land; hence the award and the adopting order had to be quashed.

p. 3

Legal principles established

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  • A Land Disputes Tribunal established under the repealed Land Disputes Tribunals Act had no jurisdiction to determine a dispute regarding title to registered land
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • A tribunal acting without jurisdiction renders its decision tainted with illegality and liable to be quashed

Court orders

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  1. 1.The award of the Kirinyaga Central Division Land Disputes Tribunal and the subsequent order of the Kerugoya Principal Magistrate adopting the award as judgment of the Court on 8th June 2010 in Land Disputes Tribunal Case No. 17 of 2010 are hereby quashed
  2. 2.There shall be no order as to costs

Authorities

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Legislation

  • Land Disputes Tribunals Act (repealed)Section 3(1)
  • Registered Land ActSection 159

Cases cited (3)

  • Jotham Amunavi vs The Chairman Sabatia Divisional Land Disputes Tribunal & Another
    C.A Civil Appeal No. 256 of 2002
  • Municipal Council of Mombasa & Umoja Consultants Ltd
    C.A Civil Appeal No. 185 of 2001
  • Pastoli vs Kabale District Local Government Council & Others
    2008 2 E.A 300
Jurisdiction invoked
Judicial review jurisdiction of the High Court under order of leave granted by Wanjiru Karanja J (repealed Land Disputes Tribunals Act Cap 303A in issue)

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 Kirinyaga Central Division Land Disputes & 4 others Ex-parte Jacob Munyi Andrew [2017] KEELC 642 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion dated 22nd November 2010), Kerugoya High Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/642/eng@2017-12-08

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