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ELCAllowedJudicial Review Application No. 27 of 2017 (Formerly Machakos Judicial Review Application No. 105 of 2012)· [2018] KEELC 2911 (KLR)

Republic v Senior Resident Magistrate, Kajiado & 3 others Ex parte Daniel Turere Kaata [2018] KEELC 2911 (KLR)

Environment and Land Court of Kenya
12 June 2018
2,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan magistrate's court cannot overturn a Land Disputes Tribunal award after adopting it as a court decree — the Environment and Land Court quashed such an attempt as void.

What this practically means

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Executive summary

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This was a judicial review application under Order 53 of the Civil Procedure Rules seeking certiorari to quash a ruling of the Senior Resident Magistrate's Court at Kajiado dated 2nd March 2012, and prohibition against further proceedings in Land Disputes Tribunal Case No. 53 of 2009 relating to an award of 29th October 2009. The ex parte applicant, Daniel Turere Kaata, held a title to KAJIADO/KAPUTIEI-SOUTH/2185 allocated upon dissolution of the Nkama Group Ranch, and obtained a tribunal award in his favour, which the magistrate adopted and a decree issued. The Interested Parties, long-term occupants who claimed adverse possession and denied service of tribunal summons, applied to set aside the award and decree, which the magistrate did on 2nd March 2012, over two years after the decree. The applicant contended the magistrate thereby acted without jurisdiction and became functus officio upon adoption. The Interested Parties argued the magistrate had jurisdiction because the Land Disputes Tribunals Act had been repealed, and that the issues involved facts outside judicial review, relying on Peterson Nguchi Kaburi. The court framed two issues: the magistrate's jurisdiction to set aside the award, and costs. Holding that the repealed Act permitted only adoption of an award, with appeal to the Appeals Committee as the sole challenge route, and following Odunga J's authorities, the court found the magistrate functus officio after issuing the decree and that his decision, made without jurisdiction and on irrelevant factors and inapplicable Practice Directions, was null and void. The court allowed the motion, quashed the magistrate's ruling, and awarded costs to the ex parte applicant.

Key legal issues

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01

Whether the Senior Resident Magistrate had jurisdiction to set aside the Land Disputes Tribunal award after adopting it and issuing a decree

Holding

The Magistrate lacked jurisdiction. Section 7(2) of the repealed Land Disputes Tribunals Act compelled the Magistrate only to adopt the award as a decree; the sole remedy for an aggrieved party was an appeal to the Appeals Committee under section 8(1), which the Interested Parties never pursued.

Reasoning

Sections 7(1) and (2) and 8(1) of the repealed Act prescribed the procedure: the tribunal's decision is filed in the magistrate's court, judgment entered in accordance with it, and a decree issued. Aggrieved parties could appeal to the Appeals Committee within thirty days. Beyond adopting the award, the magistrate had no power to interfere. Having adopted the award and issued a decree on 5th March 2010, the Respondent became functus officio, so the setting aside on 2nd March 2012, over two years later, was without jurisdiction, relying inappropriately on 2012 Practice Directions inapplicable to an already adopted award.

p. 3
02

Whether the magistrates' court's ruling setting aside the award was amenable to judicial review

Holding

Yes. The Magistrate acted beyond his scope by taking into account irrelevant factors, contrary to his statutory role under section 7(2), rendering the decision unlawful and a proper target for certiorari and prohibition.

Reasoning

The Interested Parties argued the ruling involved factual and evidential matters outside judicial review, relying on Peterson Nguchi Kaburi. The court distinguished that case, noting there was a valid award in existence that had already been adopted. Following Odunga J's decisions, a decision made without jurisdiction is null and void, and the magistrate's reliance on irrelevant factors and inapplicable Practice Directions was unreasonable and unlawful, warranting review.

p. 3

Legal principles established

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  • Once a magistrate's court adopts a Land Disputes Tribunal award and issues a decree, the court becomes functus officio and has no jurisdiction to alter, amend, set aside, review or otherwise interfere with the award.
  • A decision made without jurisdiction is a nullity and void ab initio.

Court orders

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  1. 1.An order of certiorari directed to the Respondent, the Senior Resident Magistrate Court at Kajiado, to quash the ruling and order delivered on 2nd March, 2012 on an application dated 5th October, 2011 in Land Disputes Tribunal Case No. 53 of 2009
  2. 2.An order of prohibition to restrain the Respondent and/or any other subordinate court from hearing or determining any facets of Land Dispute Tribunal Case No. 53 of 2009 in so far as it relates to the award made on 29th October, 2009
  3. 3.Costs of the application awarded to the Ex parte Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 3 and 4
  • Land Disputes Tribunals Act (repealed)Sections 7(1), 7(2) and 8(1)
  • Environment and Land Court Act
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Peterson Nguchi Kaburi V. Joseph Thuku Kaburi
    (2015) eKLR
  • Ex parte Masagu Ole Koitelel Naumo, R V Principal Magistrate Kajiado Law Courts & Another
    (2014) eKLR
  • Zedekiah M Mwale Vs Bikeke Farm Directors & Another
    Kitale HCCA No. 25 of 1998
  • R V Kajiado North District Ngong Land Disputes Tribunal & Another Ex parte Caroline Wambui Ngunjiri & 2 Others
    (2014) eKLR
  • Macfoy V United Africa Co. Ltd
    (1961) 2 ALL ER 1169 at 1172
Jurisdiction invoked
Order 53 Rules 3 and 4 of the Civil Procedure Rules; Land Disputes Tribunals Act (repealed); Environment and Land Court Act

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 Senior Resident Magistrate, Kajiado & 3 others Ex parte Daniel Turere Kaata [2018] KEELC 2911 (KLR)", Case Analysis (2018). Judicial Review Application No. 27 of 2017 (Formerly Machakos Judicial Review Application No. 105 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2911/eng@2018-06-12

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