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ELCAllowedJudicial Review No. 26 of 2012· [2018] KEELC 2316 (KLR)

Republic v Funyula Land Disputes Tribunal & another Ex-parte Patricia Taaka Wandera [2018] KEELC 2316 (KLR)

High Court of Kenya (Environment and Land Court)
23 July 2018
917 words in judgment
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The bottom line

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Kenya's High Court threw out a land tribunal's order because tribunals can only do what the law explicitly allows them to do.

What this practically means

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Executive summary

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Patricia Taaka Wandera obtained leave on 10/10/2012 and filed judicial review proceedings challenging a decision of the Funyula Land Disputes Tribunal that had been adopted by the court on 16/11/2011. The dispute arose from a 2007 agreement in which Patricia agreed to sell one acre of land parcel SAMIA/L. BUKHULUNGU/417 to Everlyn Judith Oduori for Kshs 35,000/=. Everlyn paid Kshs 20,000/= and failed to pay the balance; Patricia then sought to refund the payment and terminate the transaction. The tribunal nonetheless ordered specific performance against Patricia. Patricia argued that the tribunal lacked jurisdiction to order specific performance, was improperly constituted (six members sat, only three signed the decision, contrary to the odd-number composition required), and that the sale had become void because no application for Land Control Board consent was made within six months. The interested party did not respond and the matter was uncontested. The court (A. K. Kaniaru, J) held that under the repealed Land Disputes Tribunal Act (Cap 303A) the tribunal could only hear disputes over division or boundaries of land, claims to occupy or work land, and trespass; it had no mandate to order specific performance and, being a creature of statute without inherent powers, could not exceed its mandate. The six-member composition was also unlawful, and failure to apply for Land Control Board consent within six months rendered the transaction void. Judgment was entered for the ex-parte applicant in terms of prayers (a) and (b) of the Notice of Motion dated 30/10/2012, with an observation that the interested party should take her dispute to the appropriate forum. No costs order appears.

Key legal issues

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01

Tribunal's jurisdiction to order specific performance

Holding

The tribunal acted ultra vires its statutory jurisdiction under section 3(1) of the Land Disputes Tribunal Act by ordering specific performance

Reasoning

Section 3(1) of the repealed Land Disputes Tribunal Act (Cap 303A) confined tribunals to disputes over division or boundaries of land, claims to occupy or work land, and trespass. Ordering specific performance of a land sale agreement fell outside these categories. Tribunals are creatures of statute with no inherent powers, so the tribunal could not exceed its mandate.

p. 2
02

Proper constitution of the tribunal

Holding

A tribunal of six members was improperly constituted since the Act permitted only three or five members including the chairman

Reasoning

Section 4 of the Act provided for a chairman and either two or four elders, meaning the tribunal could only sit as three or five members. Here six members sat and only three signed the decision, contrary to the statutory composition, further vitiating the tribunal's decision.

p. 2
03

Effect of failure to obtain Land Control Board consent

Holding

Where application for consent is not made within six months, the land transaction becomes void

Reasoning

Under section 8(1) of the Land Control Act, application for consent must be made to the Land Control Board within six months of making the agreement. The parties never applied, and the court accepted that the transaction thereby became void, leaving the purchaser entitled only to a refund rather than specific performance.

p. 2

Legal principles established

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  • A Land Disputes Tribunal's jurisdiction is confined to the matters enumerated in section 3(1) of the repealed Land Disputes Tribunal Act and it has no power to order specific performance
  • A tribunal has no inherent powers and cannot go beyond what the applicable statute provides
  • A Land Disputes Tribunal could comprise only 3 or 5 members including the chairman, not 6

Court orders

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  1. 1.Judgment entered in favour of the ex-parte Applicant in terms of prayers (a) and (b) of the Notice of Motion dated 30/10/2012
  2. 2.Observation that it would be in the best interest of the Interested Party to take her dispute to the appropriate forum

Authorities

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Legislation

  • Land Disputes Tribunal Act (Cap 303A) (repealed)Section 3(1)
  • Land Disputes Tribunal Act (Cap 303A) (repealed)Section 4
  • Land Control ActSection 8(1)
Jurisdiction invoked
Judicial review jurisdiction of the High Court (supervisory jurisdiction over tribunals), proceedings brought after leave granted on 10/10/2012

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 Funyula Land Disputes Tribunal & another Ex-parte Patricia Taaka Wandera [2018] KEELC 2316 (KLR)", Case Analysis (2018). Judicial Review No. 26 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2316/eng@2018-07-23

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