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ELCPartially AllowedJudicial Review Application No. 34 of 2012· [2018] KEELC 2359 (KLR)

Republic v Land Registrar, Vihiga & 2 others Ex-parte Pareh Narandash Sedani [2018] KEELC 2359 (KLR)

Environment and Land Court
11 July 2018
NMN.A. Matheka
2,794 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that Land Disputes Tribunals had no power to award ownership of registered land, voiding a Tribunal award over two Vihiga parcels.

What this practically means

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Executive summary

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The applicant, Pareh Narandash Sedani, sought judicial review orders under Order 53 of the Civil Procedure Rules, namely prohibition against the Principal Magistrate, Vihiga from granting the interested party leave for the Executive Officer to sign transfer forms for parcels West Bunyore/Ebusikhale/2153 and 2154 pursuant to an award of the Luanda Division Land Disputes Tribunal adopted in Vihiga Miscellaneous Civil Application No. 70 of 1998, and mandamus compelling the Land Registrar, Vihiga to cancel entries of the decrees on the registers of those parcels. The applicant had purchased parcel 2153 in 2004 and held a title, and was never a party to the Tribunal proceedings. The respondents indicated they would abide by the court's order, while the interested parties defended the Tribunal award. The court framed the preliminary issue as the jurisdiction of the Luanda Division Land Disputes Tribunal. Applying Section 3 of the Land Disputes Tribunal Act (now repealed) and the Court of Appeal decision in M'Marete v Republic, the court found the Tribunal had no jurisdiction to determine ownership of registered land or to cancel titles and order issuance of new ones, holding that the Tribunal grossly exceeded its jurisdiction and that its proceedings were unfair, unlawful, unreasonable and procedurally unfair. The court granted both orders sought - prohibition and mandamus - and made no orders as to costs. Judgment delivered at Kakamega on 11 July 2018 by N.A. Matheka, J.

Key legal issues

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01

Jurisdiction of the Luanda Division Land Disputes Tribunal

Holding

The Tribunal had no jurisdiction to adjudicate ownership of registered parcels or to cancel titles and order issuance of new ones

Reasoning

Section 3 of the Land Disputes Tribunal Act limited tribunals to civil disputes on division/determination of boundaries, claims to occupy or work land, and trespass. The Tribunal purported to award registered parcels to the interested party, effectively cancelling and reissuing titles, a matter outside Section 3(2). The court followed M'Marete v Republic, holding tribunals cannot award registered land.

p. 3
02

Entitlement to judicial review orders

Holding

Judicial review is discretionary, but on established illegality the applicant merited prohibition and mandamus

Reasoning

Following the Tradewise Agencies/Pastoli framework, the applicant had to show illegality, irrationality or procedural impropriety. The Tribunal's exceeding of jurisdiction constituted illegality. The court noted review remedies are discretionary and exercised judicially on sound legal principles, then found the proceedings unfair, unlawful and procedurally unfair and granted the orders sought.

p. 4

Legal principles established

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  • Land Disputes Tribunals had no jurisdiction to determine claims to ownership of or cancel titles to registered land; their mandate was limited to boundary disputes, claims to occupy or work land, and trespass

Court orders

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  1. 1.An order of prohibition prohibiting the Principal Magistrate or any other magistrate officiating at Vihiga Court from granting the interested party leave for the Executive Officer to sign transfer forms for parcels West Bunyore/Ebusikhale/2153 and 2154 in Vihiga Magistrate's Court Miscellaneous Civil Application No. 70 of 1998
  2. 2.An order of mandamus compelling the Land Registrar, Vihiga to cancel the entry of the decrees in the Registers of parcels West Bunyore/Ebusikhale/2153 and West Bunyore/Ebusikhale/2154
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesSection 53 Rule 1(1)(2)(4); Order 53
  • Land Disputes Tribunal Act (now repealed)Section 3(1), 3(2)
  • Registered Land Actnot_specified
  • Law Reform ActCap 26, Part VI

Cases cited (9)

  • Republic v Kenya Revenue Authority & another Ex-Parte Tradewise Agencies
    [2013] eKLR
  • Pastoli vs. Kabale District Local Government Council and Others
    [2008] 2 EA 300
  • M'Marete v Republic & 3 others
    Civil Appeal 259 of 2000 [2004] eKLR
  • Masagu Ole Naumo v Principal Magistrate Kajiado Law Courts & another
    JR 370 of 2013 [2014] eKLR
  • Republic vs Kenya Revenue Authority ex parte Yaya Towers Limited
    [2008] eKLR
  • Republic vs. Judicial Service Commission of Kenya Ex Parte Stephen S. Pareno
    Nairobi HCMA No. 1025 of 2003 [2004] 1 KLR 203
  • Welamondi vs The Chairman, Electoral Commission of Kenya
    (2002) 1 KLR
  • Republic v Chairperson Business Premises Rent Tribunal & another Ex-parte Keiyo Housing Cooperative Society Ltd & another
    [2014] eKLR
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    Civil Application No. 307/2003
Jurisdiction invoked
Order 53 of the Civil Procedure Rules and the Law Reform Act, Cap 26 (judicial review of quasi-judicial tribunal action)

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 Registrar, Vihiga & 2 others Ex-parte Pareh Narandash Sedani [2018] KEELC 2359 (KLR)", Case Analysis (2018). Judicial Review Application No. 34 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2359/eng@2018-07-11

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