Republic v Cherangani Land Disputes Tribunal & 2 others Ex-Parte Alfred Pascal Wanyama [2018] KEELC 1577 (KLR)
The bottom line
#Kenya's High Court dismissed a bid to overturn a land tribunal's decision, ruling the applicant failed to prove his allegations and that possession alone allows a trespass claim.
What this practically means
#Executive summary
#Key legal issues
#Proper constitution of the Land Disputes Tribunal
No merit - applicant produced no evidence that the elders were absent or that a ministerial directive suspended the tribunal's operations
The court held the applicant had to prove by evidence the allegation that the elders did not sit, and to prove the alleged ministerial suspension directive and the law under which it was made. None was tendered. The distinguishing feature from the Borabu case was noted: there the failure to produce the Gazette notice was fatal; here no gazettement issue was raised at all.
Competence of proceedings for want of letters of administration
Proceedings competent - the claim was in trespass and the claimant was in possession
The tribunal claim was one of trespass to land, within section 3 of the Land Disputes Tribunal Act. Citing Martha Kigen v Johana Tibino and Clerk & Lindsell on Torts, the court held trespass is actionable at the suit of the person in possession, so no grant was needed to prosecute the claim.
Breach of natural justice (denial of hearing)
No breach - applicant's own exhibits showed he was summoned on more than one occasion
The applicant's own exhibit demonstrated he was summoned to the tribunal hearing on more than one occasion. The court declined to presume the truth of his claim of non-service, finding it improbable that proceedings went on without his knowledge.
Excess of jurisdiction - mesne profits, damages and ownership
No excess - the dispute was trespass, not title, and the tribunal did not award mesne profits, only costs
The tribunal claimant alleged trespass onto land beyond what the applicant bought and sought to prevent him occupying land not his; it recognised the applicant was entitled to some land, so no title question arose. The record showed no award of mesne profits or damages, only an order for costs.
Legal principles established
#- In an adversarial system, a party alleging that a tribunal was suspended by ministerial directive bears the evidential burden of proving that allegation.
- A person in possession of land may sue in trespass without holding letters of administration.
- A tribunal is a creature of statute and cannot confer on itself jurisdiction the statute has not given it.
Court orders
#- 1.Judicial Review Notice of Motion dated 23rd June, 2011 dismissed with no orders as to costs
- Jurisdiction invoked
- Judicial review jurisdiction over a Land Disputes Tribunal award adopted as judgment of the court in Kitale SPMC Land Case No 28 of 2005
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cherangani Land Disputes Tribunal & 2 others Ex-Parte Alfred Pascal Wanyama [2018] KEELC 1577 (KLR)", Case Analysis (2018). Judicial Review Notice of Motion dated 23rd June, 2011 (grounded on Notice of Motion dated 18th December, 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1577/eng@2018-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.