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ELCAllowedMisc Application No 46 of 2011· [2018] KEELC 595 (KLR)

Republic v Chairman Land Disputes Appeals Committee & another; Paul Sawe Koe (Interested Party); Joel Kipkoech Ngeno (Subject) [2018] KEELC 595 (KLR)

High Court of Kenya
16 November 2018
JOJ. M. ONYANGO
923 words in judgment
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The bottom line

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Kenya's High Court quashed a Land Disputes Tribunal award because the tribunal had no legal power to decide that kind of land case.

What this practically means

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Executive summary

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The ex-parte applicant moved the High Court at Kericho by Notice of Motion for judicial review seeking an order of certiorari to quash the 2nd Respondent's judgment dated 14th September 2011, by which the Kericho Chief Magistrate's Court adopted the award of the Sigowet Land Disputes Appeals Committee dated 14th June 2011, together with the entire proceedings arising therefrom. The dispute originated before the Sigowet Land Disputes Tribunal under the (repealed) Land Disputes Tribunal Act, went on appeal to the Appeals Committee, and the award was filed with and adopted by the magistrates' court under section 7 of the Act. The application was canvassed by written submissions; the respondents' counsel indicated she would not file any. The court framed three issues: whether the Tribunal acted within its powers in issuing the award; whether the subsequent adoption by the Chief Magistrate's court was incompetent; and whether the applicant was entitled to the reliefs sought. The court held that section 3(1) of the Act confines tribunals to boundary disputes, claims to occupy or work land, and trespass, adjudicated under customary law, and that the dispute did not fall within those categories, rendering the award null and void. Relying on the principle that acts and proceedings founded on a void act are themselves void (Macfoy v United Africa Co Ltd), the court held the adoption of the award was a nullity. Certiorari issued quashing the adoption judgment and the underlying proceedings, with costs of the application borne by the Interested Party.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over the dispute

Holding

The Tribunal lacked jurisdiction; the dispute did not fall within section 3 of the Land Disputes Tribunal Act, so its award was null and void.

Reasoning

Section 3(1) of the Land Disputes Tribunal Act confines tribunals to civil disputes concerning division or determination of boundaries to land, claims to occupy or work land, and trespass to land, to be adjudicated under customary law. The dispute that led to the Sigowet Tribunal's award of 14th June 2011 did not fall within these categories, being a matter touching on registered title, which tribunals cannot adjudicate under customary law.

p. 2
02

Validity of the adoption of the Tribunal award by the Chief Magistrate's court

Holding

The adoption of the void award was itself a nullity.

Reasoning

Since the Tribunal's award was null and void for want of jurisdiction, the Chief Magistrate's reading and adoption of it as a judgment of the court under section 7(2) of the Act was founded on a nullity and was therefore incompetent and bad in law, following the principle in Macfoy v United Africa Co Ltd that proceedings founded on a void act collapse.

p. 2

Legal principles established

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  • A decision by a tribunal without jurisdiction is null and void, as are all proceedings founded on it.
  • A void act is a nullity requiring no court order to set it aside, and every proceeding founded on it is equally bad.

Court orders

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  1. 1.An order of certiorari issuing to remove and quash the 2nd Respondent's judgment dated 14th September 2011 together with the entire proceedings arising therefrom and or connected therewith pursuant to the 1st Respondent's award dated 14th June 2011 adopted in Kericho Chief Magistrate's Court Miscellaneous Civil Application No. 46 of 2011
  2. 2.The costs of the application to be borne by the Interested Party

Authorities

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Legislation

  • Land Disputes Tribunal Act No. 18 of 1990 (Cap 303A)section 3(1), section 4, section 7(1), section 7(2), Rule 7

Cases cited (2)

  • Republic Vs Kajiado North District Ngong Land Disputes Tribunal, Senior Resident Magistrate Kadjiado
    [2014] eKLR
  • Macfoy vs. United Africa Co. Ltd
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act (order of certiorari) - not expressly stated in the judgment

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 Land Disputes Appeals Committee & another; Paul Sawe Koe (Interested Party); Joel Kipkoech Ngeno (Subject) [2018] KEELC 595 (KLR)", Case Analysis (2018). Misc Application No 46 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/595/eng@2018-11-16

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