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ELCAllowedKericho Chief Magistrate's Court Misc. Civil Application No. 92 of 2009 (subject of certiorari); Notice of Motion dated 31st January 2011· [2018] KEELC 777 (KLR)

Republic v Chairman Bomet Land Disputes Tribunal & 2 others [2018] KEELC 777 (KLR)

High Court
20 November 2018
JOJ. M Onyango
970 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 award over registered land, confirming tribunals cannot decide disputes beyond customary law matters.

What this practically means

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Executive summary

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The ex-parte applicant moved the court by Notice of Motion dated 31st January 2011 seeking an order of certiorari to quash the 2nd Respondent's order of 18th November 2010, by which the Kericho Chief Magistrate's Court read and adopted an award of the Bomet Land Disputes Tribunal dated 30th September 2009 as the judgment of the court. The applicant had filed a case against the interested party before the Bomet Land Disputes Tribunal under the Land Disputes Tribunal Act No. 18 of 1990 (now repealed); the award was filed and adopted under section 7 of that Act. 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 found that the dispute did not fall within section 3 of the Act as the land was registered under the Registered Land Act Cap 300 (repealed), giving the applicant absolute proprietorship; the Tribunal had no jurisdiction over a dispute outside customary law and its award was null and void. Applying Macfoy v United Africa Co. Ltd and the Ngong Land Disputes Tribunal authority, the adoption of the award by the magistrate's court was likewise a nullity. The application was allowed, certiorari issued quashing the order and entire proceedings, and costs were awarded against the 3rd Respondent/Interested Party.

Key legal issues

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01

Jurisdiction of the Land Disputes Tribunal over the dispute

Holding

The Tribunal exceeded its jurisdiction; the award dated 30th September 2009 was null and void as the dispute concerned registered land

Reasoning

Section 3(1) of the Land Disputes Tribunal Act confines tribunals to civil disputes of a customary law nature: division or determination of boundaries to land, claims to occupy or work land, and trespass to land. The dispute here concerned land registered under the Registered Land Act Cap 300 (repealed), giving the registered proprietor absolute proprietorship defeasible only under that Act. The Tribunal therefore had no jurisdiction over a dispute outside customary law, rendering the award null and void.

p. 2
02

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

Holding

The adoption of the null and void Tribunal award by the 2nd Respondent on 18th November 2010 was itself a nullity

Reasoning

Flowing from the finding that the Tribunal lacked jurisdiction, the award was void ab initio. Relying on Republic v Kajiado North District Ngong Land Disputes Tribunal and Macfoy v United Africa Co. Ltd, the court held that proceedings founded on a void act are themselves bad and incurably bad and collapse without more ado. The adoption as a judgment of the court was therefore a nullity and fit to be quashed by certiorari.

p. 2

Legal principles established

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  • A Land Disputes Tribunal has no jurisdiction to adjudicate on a dispute falling outside the purview of customary law, including disputes over registered land
  • A decision made by a tribunal without jurisdiction is null and void
  • An act that is void is a nullity and every proceeding founded on it is also bad and incurably bad

Court orders

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  1. 1.An order of certiorari issued removing into the court and quashing the 2nd Respondent's order dated 18th November 2010 together with the entire proceedings arising therefrom and or connected therewith pursuant to the 1st Respondent's award dated 30th September 2009 which was read and adopted as a judgment of the Court in Kericho Chief Magistrate's Court Miscellaneous Civil Application No. 92 of 2009
  2. 2.The costs of the application to be borne by the 3rd Respondent/Interested Party

Authorities

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Legislation

  • Land Disputes Tribunal Acts 3(1), s 7(1), s 7(2), Rule 7
  • Registered Land Act Cap 300(repealed)

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 (orders of certiorari) - application for certiorari to quash Tribunal award adopted as 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 Bomet Land Disputes Tribunal & 2 others [2018] KEELC 777 (KLR)", Case Analysis (2018). Kericho Chief Magistrate's Court Misc. Civil Application No. 92 of 2009 (subject of certiorari); Notice of Motion dated 31st January 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/777/eng@2018-11-20

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