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ELCAllowedELC Petition No. 14 of 2015 (Former Constitutional Petition No. 15 of 2015)· [2018] KEELC 3085 (KLR)

Ernest Kevin Luchidio v Attorney General (for and on behalf of the Chief Magistrate’s Court Kakamega) & 2 others [2018] KEELC 3085 (KLR)

Environment & Land Court
31 May 2018
NMN. A. Matheka
2,827 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega quashed orders transferring 0.7 acres of registered land, confirming Land Disputes Tribunals had no power to decide land ownership.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of LR No. BUTSOTSO/SHIBEYE/227 which he purchased from the Interested Party, petitioned the Environment and Land Court at Kakamega claiming that the Chief Magistrate's Court at Kakamega, at the instance of the 2nd Respondent, made orders in Kakamega CM Miscellaneous Application No. 195 of 2005 adopting the award of the then Lurambi Division Land Disputes Tribunal, purporting to transfer 0.7 acres of his parcel to LR No. BUTSOTSO/SHIBEYE/2798. He sought declarations that this violated numerous constitutional provisions, a permanent injunction, certiorari and costs. The 1st Respondent filed grounds of opposition and written submissions, contending it merely adopted a tribunal award as compelled by section 7(2) of the Land Disputes Tribunal Act and had no power to alter it; the 2nd Respondent and Interested Party did not participate. The court framed two issues: whether the petition was opposed, and whether the Petitioner's rights were violated. It found no Replying Affidavit was filed, so the Petitioner's facts stood uncontroverted. On jurisdiction, relying on M'Marete v Republic and related authority, the court held that the tribunal's dispute was essentially a claim to title over registered land, beyond section 3 of the Land Disputes Tribunal Act, and that the Magistrate's court could not cure that defect. The summary, procedurally improper manner of ordering transfer of land violated the Petitioner's rights to property, fair administrative action, access to justice and fair hearing. The petition was allowed with declarations, a permanent injunction, certiorari quashing the transfer order, and costs to the Petitioner.

Key legal issues

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01

Whether the petition was opposed

Holding

The petition was opposed only by grounds of opposition by the 1st Respondent; no Replying Affidavit was filed by any Respondent or the Interested Party, leaving the Petitioner's facts uncontroverted.

Reasoning

Rule 15 of the Mutunga Rules prescribes how a Respondent responds to a petition. None filed a Replying Affidavit. Following Israel Otieno Agina v Attorney General, uncontroverted facts in a petition and affidavit are taken as true and correct, so the petition's factual assertions stood essentially unrebutted.

p. 2
02

Whether the Land Disputes Tribunal and the Magistrate's Court had jurisdiction over the dispute

Holding

The tribunal acted in excess of jurisdiction by determining title to registered land; the Magistrate's court order adopting and implementing that award was unlawful and liable to be quashed.

Reasoning

Section 3 of the Land Disputes Tribunal Act limited tribunals to boundary disputes, claims to occupy or work land, and trespass. The dispute here was a claim to ownership and transfer of 0.7 acres of registered land, outside section 3. The court followed M'Marete v Republic and other authorities confirming tribunals lacked jurisdiction over title to land.

p. 4
03

Whether the Petitioner's constitutional rights were violated

Holding

Yes - the summary, procedurally improper transfer of land from the Petitioner's parcel violated Articles 40, 47, 48, 50(1), 25(c) and related provisions.

Reasoning

Orders of excision and transfer of land are substantive and may only issue from a substantive suit instituted in the prescribed manner. None existed before the lower court, only a miscellaneous application adopting a tribunal award. The procedure was inefficient, unlawful, unreasonable and procedurally unfair, offending Articles 47, 48 and 50(1), and denying access to information under Article 35.

p. 2

Legal principles established

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  • Land Disputes Tribunals had no jurisdiction to determine claims to title to or ownership of registered land; such jurisdiction was confined to boundary disputes, claims to occupy or work land, and trespass.
  • A magistrate's court adopting a tribunal award cannot cure a tribunal's want of jurisdiction; orders of excision and transfer of land are substantive and can only issue from a substantively instituted suit.

Court orders

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  1. 1.A declaration that the joint, unlawful and illegal acts of the Respondents complained of are offensive to and violate the cited provisions of the Constitution, 2010 and are consequently unconstitutional
  2. 2.A permanent injunction against the 2nd Respondent, his agents and representatives, and the District Surveyor Kakamega or any other surveyor, restraining them from implementing the orders of the 1st Respondent complained of
  3. 3.An order of certiorari to remove into the Court and quash the order of the 1st Respondent purporting to direct the transfer of 0.7 acres from LR No. BUTSOTSO/SHIBEYE/227 to L.R. No. BUTSOTSO/SHIBEYE/2798 to make it measure 2 1/2 acres
  4. 4.Costs of the Petition to the Petitioner
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution, 2010; Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 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, "Ernest Kevin Luchidio v Attorney General (for and on behalf of the Chief Magistrate’s Court Kakamega) & 2 others [2018] KEELC 3085 (KLR)", Case Analysis (2018). ELC Petition No. 14 of 2015 (Former Constitutional Petition No. 15 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3085/eng@2018-05-31

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