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ELCDismissedJudicial Review (Notice of Motion dated 19th October, 1998)· [2018] KEELC 1807 (KLR)

Republic v Land Disputes Tribunal, Nuu Division Mwingi District & 2 others Exparte David Kalii Munyao [2018] KEELC 1807 (KLR)

High Court of Kenya
28 September 2018
1,303 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Ex-parte Applicant moved the High Court by Notice of Motion dated 19th October, 1998 seeking an order of certiorari to quash the decision of the Land Disputes Tribunal, Nuu Division, Mwingi District in Tribunal Land Case No. 1 of 1998, together with consequential orders and costs. He argued that the Tribunal's decision was res judicata, the same land having been awarded to him in Kitui DMCC No. 388 of 1975, a decision upheld on second appeal in Nairobi HCCA No. 85 of 1978, and that the Tribunal lacked jurisdiction. The 1st Interested Party maintained that the Tribunal dispute concerned his own inherited land, not his late mother's land litigated in the Magistrate's Court, and that the Applicant had declined to participate in the Tribunal proceedings. The 2nd Interested Party likewise said the parcels were distinct. Angote J framed two issues: res judicata and the Tribunal's jurisdiction. The court held that the Applicant, who bore the burden of establishing res judicata, failed to exhibit the pleadings, proceedings and judgment in DMCC No. 388 of 1975, so the two parcels could not be compared, and that he had himself refused to participate in the Tribunal proceedings where the issue could have been raised. On jurisdiction, section 3(1)(c) of the repealed Land Disputes Tribunal Act expressly conferred jurisdiction over civil disputes as to trespass to land. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Whether the matter before the Land Disputes Tribunal was res judicata

Holding

No - the Applicant failed to prove that the land in dispute before the Tribunal was the same land litigated in Kitui DMCC No. 388 of 1975, having failed to exhibit the earlier proceedings and judgment.

Reasoning

The court found that although the Tribunal defined the disputed land by sketch maps, there was no description of the land litigated in the 1975 case, and the Applicant did not exhibit the proceedings and judgment in DMCC No. 388 of 1975. Without that material the court could not compare the two parcels. Further, the Applicant declined to participate in the Tribunal proceedings after being invited, and it was his responsibility to raise res judicata before the Tribunal.

p. 2
02

Whether the Land Disputes Tribunal had jurisdiction to entertain the dispute

Holding

Yes - the dispute was one of trespass to land, which fell squarely within section 3(1)(c) of the Land Disputes Tribunal Act (repealed).

Reasoning

The Interested Parties accused the Applicant of trespassing on their portions of land, which had no title document. Section 3(1)(c) of the repealed Land Disputes Tribunal Act granted the Tribunal jurisdiction over civil disputes as to trespass to land. The court therefore held the Tribunal possessed the requisite jurisdiction, and the claim that it lacked jurisdiction to determine ownership did not defeat the trespass reference.

p. 2

Legal principles established

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  • A party alleging res judicata must exhibit the pleadings, proceedings and judgment in the earlier case to enable the court to determine whether the same subject matter was litigated.
  • Section 3(1)(c) of the Land Disputes Tribunal Act (repealed) conferred jurisdiction on Land Disputes Tribunals to determine civil disputes as to trespass to land.

Court orders

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  1. 1.The Notice of Motion dated 19th October, 1998 is dismissed with costs

Authorities

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Legislation

  • Land Disputes Tribunal Act (repealed)Section 3(1)(c)
Jurisdiction invoked
Judicial review jurisdiction of the High Court over the decision of a Land Disputes Tribunal (Land Disputes Tribunal Act, now repealed)

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, Nuu Division Mwingi District & 2 others Exparte David Kalii Munyao [2018] KEELC 1807 (KLR)", Case Analysis (2018). Judicial Review (Notice of Motion dated 19th October, 1998). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1807/eng@2018-09-28

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