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ELCAllowedJudicial Review (Misc. Application) – Notice of Motion dated 12th June 2012· [2017] KEELC 2999 (KLR)

Republic v Land Disputes Tribunal – Kisumu & another & 2 others Ex Parte Fanuel Okoth Onyango [2017] KEELC 2999 (KLR)

High Court of Kenya
24 March 2017
2,486 words in judgment
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The bottom line

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Kenya's High Court quashed a land tribunal's award because it had no power to cancel or subdivide registered land titles.

What this practically means

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Executive summary

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The ex parte applicant, registered proprietor of land parcel Kabondo/Kowidi/304, obtained leave and moved the High Court by Notice of Motion dated 12th June 2012 seeking certiorari to quash the decision of the Nyanza Land Disputes Appeals Committee in Appeal No. 45 of 2009 and the Oyugis Principal Magistrate's Court Misc. Application No. 7 of 2009, which had adopted the committee's decision as judgment of the court on 24th January 2012. The underlying District Land Disputes Tribunal award of 30th April 2009 had directed the subdivision of the applicant's parcel and registration of portions in the names of the claimant (the interested party) and the objector. The interested party opposed, contending the dispute predated the applicant's title and that the leave application was time-barred under Order 53 Rule 2. The court framed two issues: whether the Tribunal exceeded its jurisdiction, and whether the magistrate's adoption of the award was thereby null and void. Holding that Section 3(1) of the Land Disputes Tribunals Act, 1990 (repealed) conferred no jurisdiction over title to registered land, the court found the Tribunal's award, which effectively annulled the applicant's title and ordered re-demarcation and subdivision, ultra vires and void ab initio; the appeal and the magistrate's adoption were equally nullities. On limitation, following Maraga Ag. J in the Kaloleni case, time ran from entry of judgment, so the application was in time. Certiorari issued to quash both decisions, with each party bearing their own costs. Judgment delivered at Kisii on 24th March 2017 by J. M. Mutungi J.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal under Section 3(1) of the Land Disputes Tribunals Act, 1990 (repealed)

Holding

The Tribunal acted in excess of its jurisdiction because it dealt with title to registered land, which Section 3(1) never conferred on it

Reasoning

Section 3(1) limited the Tribunal's mandate to disputes over division or boundaries, claims to occupy or work land, and trespass. The claimant's claim required challenging ownership of the registered parcel Kabondo/Kowidi/304. The award ordering subdivision and cancellation of the applicant's title amounted to annulment of a registered title, a matter reserved for the High Court. The Tribunal therefore acted ultra vires and its decision was void ab initio and amenable to quashing by certiorari.

p. 3
02

Effect of the nullity on the appeal and the magistrate's court adoption

Holding

The provincial appeals committee's decision and the magistrate's court adoption were equally nullities since nothing valid could flow from a void award

Reasoning

Having found the Tribunal's award null and void, the court held there was nothing valid to appeal; the appeals committee's decision was likewise a nullity. The principal magistrate's court could not validate or give effect to a void decision by adopting it as judgment. The court emphasised its supervisory role over tribunals and subordinate courts and the duty to uphold the rule of law despite sympathy for the interested party.

p. 4
03

Limitation under Order 53 Rule 2 - when time begins to run

Holding

The six-month period runs from the date of entry of judgment by the court, so the application filed on 22nd May 2012 was within time

Reasoning

Following the Maraga Ag. J decision in the Kaloleni case, the court approved that tribunal proceedings are only concluded when the decision is made a judgment of the court and a decree issues. Although the award was filed in June 2009, no decree issued until after the appeals committee decision was adopted as judgment on 24th January 2012 and the decree issued, prompting the registrar's execution letter of 4th April 2012. The leave application of 22nd May 2012 was therefore within the prescribed six months.

p. 4

Legal principles established

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  • A Land Disputes Tribunal has no jurisdiction to determine title to registered land or to order cancellation, subdivision or transfer of a registered title; such jurisdiction lay exclusively with the High Court
  • A decision made without or in excess of jurisdiction is null and void ab initio and remains a nullity notwithstanding a subsequent appeal
  • The six-month period for applications for certiorari in respect of tribunal decisions begins to run from the date of entry of judgment by the magistrate's court, not from the date of the tribunal's award

Court orders

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  1. 1.An order of certiorari to bring into the High Court the decision of the Nyanza Land Disputes Appeal Committee No. 45 of 2009 and the Oyugis Principal Magistrate's Court Misc. No. 7 of 2009 decision adopting the said decision as judgment of the court on 24th January 2012, for purposes of being quashed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Land Disputes Tribunals Act, 1990 (repealed)Section 3(1)
  • Land Disputes Tribunals Act, 1990 (repealed)Section 4
  • Land Disputes Tribunals Act, 1990 (repealed)Section 7(1) and (2)
  • Civil Procedure RulesOrder 53 Rule 2
  • Civil Procedure Actenforcement of decrees

Cases cited (4)

  • Kimote Musau –vs- Makumi Mulura Muthwethau & 2 Others
    [2015] eKLR
  • Kenya National Examination Council –vs- Republic ex parte Godfrey Gathenji Njoroge & 9 Others
    [1997] eKLR (Civil Appeal No. 266 of 1996)
  • Jotham Amunavi –vs- Chairman Sabatia Land Disputes Tribunal & Enos Kenyani Amunavi
    Civil Appeal No. 256 of 2002 (unreported)
  • Republic –vs- Resident Magistrate Kaloleni & 2 Others ex parte
    Msa Misc. App. No. 117 of 2004 (unreported)
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules; supervisory jurisdiction over tribunals and subordinate courts

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 Land Disputes Tribunal – Kisumu & another & 2 others Ex Parte Fanuel Okoth Onyango [2017] KEELC 2999 (KLR)", Case Analysis (2017). Judicial Review (Misc. Application) – Notice of Motion dated 12th June 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2999/eng@2017-03-24

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