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ELCDismissedJudicial Review Misc. Application No. 72 of 2011· [2018] KEELC 1996 (KLR)

Republic v Meru Central District Land Disputes Tribunal & 4 others Exparte M’kungania S/O Marete [2018] KEELC 1996 (KLR)

Environment and Land Court
29 August 2018
1,894 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court ruled a Land Disputes Tribunal had no power to subdivide registered land, but dismissed the owner's case over a technical filing error.

What this practically means

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Executive summary

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The ex parte applicant, registered owner of LR No. Nkuene/Kathera/40, moved the court by notice of motion dated 12/11/2011 under Order 53 and Sections 8 and 9 of the Law Reform Act, seeking prohibition of the Meru Central District Land Disputes Tribunal's decision in LDT No. 28 of 2009 (Meru CMCC LDT No. 29 of 2009) and a declaration that the proceedings and award were null and void ab initio. The Tribunal had ordered the subdivision of the registered parcel among the applicant's two wives and himself. The 2nd to 4th interested parties opposed, contending that no certiorari had been sought and prohibition could not issue against an order already made. The court framed three issues: jurisdiction, the absence of a certiorari prayer, and the orders to issue. It found, following Beatrice M'Marete and Jotham Amunavi, that the Tribunal exceeded its jurisdiction under Section 3(1) of the Land Disputes Tribunals Act by entertaining a claim over registered land whose implementation would entail subdivision and rectification of title, rendering the award a nullity. It held prohibition could stand alone without certiorari where a future event is to be prevented, so the motion was not defective on that account. However, prohibition had been sought against the wrong parties: the Tribunal does not implement its own decisions, and the interested parties were not included in the proposed relief in the statutory statement contrary to Order 53 rule 4. Relying on John Kasimu Kilatya, the court noted non-joinder of the implementing court is not fatal where an award is a nullity, but its hands were bound and it dismissed the motion, with each party bearing its own costs.

Key legal issues

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01

Jurisdiction of Land Disputes Tribunal over registered land

Holding

The Tribunal acted outside its jurisdiction by entertaining and ordering the subdivision of registered land, rendering its award a nullity

Reasoning

Section 3(1) of the Land Disputes Tribunals Act confines tribunals to boundary disputes, claims to occupy or work land and trespass. The impugned decision acknowledged the parcel was registered in the applicant's name yet ordered its subdivision among family members. Following Beatrice M'Marete and Jotham Amunavi, a claim whose implementation would entail rectifying or cancelling titles is a claim to ownership, beyond the Tribunal's jurisdiction.

p. 2
02

Whether absence of a certiorari prayer defeats a prohibition prayer

Holding

The motion is not defective for lack of a certiorari prayer; prohibition can stand alone where a future event is sought to be prevented

Reasoning

The interested parties argued prohibition cannot issue against an order already made without certiorari. The court held prohibition is not conjoined at the hip with certiorari; it suffices that there is a future event capable of being prohibited, namely implementation of the Tribunal's decision.

p. 2
03

Whether prohibition could issue against the parties currently enjoined

Holding

Prohibition could not issue because it was sought against parties not properly within the proposed relief in the statutory statement

Reasoning

The Tribunal does not implement its own decision, and the interested parties were not included in the proposed relief laid out in the statutory statement, contrary to Order 53 rule 4 which confines relief to that set out in the statement. No implementing authority was therefore properly before the court. However, following John Kasimu Kilatya, non-joinder of the implementing court is not fatal where the award is a nullity.

p. 2

Legal principles established

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  • A Land Disputes Tribunal exceeds its jurisdiction where it determines a dispute over registered land whose implementation would entail rectifying or cancelling titles; such an award is a nullity
  • A prayer for prohibition can stand on its own without a prayer for certiorari where there is a future event sought to be prohibited

Court orders

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  1. 1.Dismissal of the notice of motion dated 12/11/2011
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 Rules 3(1), (2), (3) and 4 of the Civil Procedure Rules

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 Meru Central District Land Disputes Tribunal & 4 others Exparte M’kungania S/O Marete [2018] KEELC 1996 (KLR)", Case Analysis (2018). Judicial Review Misc. Application No. 72 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1996/eng@2018-08-01

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