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ELCPartially AllowedJudicial Review Application (Notice of Motion) dated 14th October 2011, Migori High Court· [2018] KEELC 3847 (KLR)

George Adwari Opengo v Chairman Nyanza Provincial Land Appeals Committee & another [2018] KEELC 3847 (KLR)

High Court of Kenya
13 March 2018
GOG. M. A. Ongondo
1,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court quashed a land tribunal's award splitting registered land, confirming only the High Court can decide ownership of titled land.

What this practically means

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Executive summary

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The ex-parte applicant, George Adwar Opengo, the registered owner of land parcel South Sakwa/Kogelo/1319, obtained leave on 26th September 2011 to apply for judicial review and subsequently filed a Notice of Motion seeking orders of certiorari to quash the award of the Nyanza Provincial Land Appeals Committee dated 13th July 2011 (which had ordered the suit land subdivided into two equal halves of 2.77 hectares between him and the interested party, Benson Oseko Obok) and the initial award of the Land Disputes Tribunal, Awendo Division, plus an order of prohibition against the District Land Registrar and Surveyor, Migori, from implementing the awards. The application was unopposed. Counsel relied on sections 3 and 4 of the repealed Land Disputes Tribunal Act, arguing the tribunals had no jurisdiction to nullify title to land registered under the repealed Registered Land Act Cap 300. The court framed two issues: whether the Land Appeals Committee lacked jurisdiction and whether the applicant was entitled to the orders sought. Applying the Kenya National Examinations Council decision and the Court of Appeal's Kimote Musau authority, the court held that the Committee acted outside its jurisdiction in ordering subdivision and cancellation of registered title, a jurisdiction reserved to the High Court, rendering the award a nullity ab initio. Certiorari and prohibition were granted, with each party bearing their own costs.

Key legal issues

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01

Whether the Nyanza Land Appeals Committee and the Awendo Land Disputes Tribunal had jurisdiction over the dispute

Holding

They lacked jurisdiction; the award dated 13th July 2011 was a nullity

Reasoning

Section 3 of the repealed Land Disputes Tribunal Act limited tribunals to boundary determinations, claims to occupy or work land, and trespass. It did not confer power to nullify title to land registered under the Registered Land Act (Cap 300) or to order subdivision and transfer. Ordering subdivision and effective cancellation of registered title was reserved for the High Court. The Committee's decision directing equal subdivision was therefore ultra vires and a nullity ab initio.

p. 2
02

Whether the ex-parte applicant was entitled to orders of certiorari and prohibition

Holding

Yes; certiorari to quash the awards and prohibition against implementation were granted

Reasoning

Relying on Kenya National Examinations Council v R, certiorari issues where a decision is made without or in excess of jurisdiction or in breach of natural justice. The award having been made without jurisdiction, it could not stand. The application was unopposed - the respondents and interested party filed no response - and the court found the applicant entitled to the orders sought and granted certiorari and prohibition, with the orders operating as a stay.

p. 2

Legal principles established

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  • A Land Disputes Tribunal or Land Appeals Committee has no jurisdiction to determine ownership of registered land or direct its subdivision, such jurisdiction being reserved to the High Court
  • An award made without jurisdiction is a nullity ab initio and certiorari will issue to quash it

Court orders

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  1. 1.An order of certiorari to remove into the High Court and quash the award of the Nyanza Provincial Land Appeals Committee dated 13th July 2011 and the initial award of the Land Disputes Tribunal, Awendo Division
  2. 2.An order of prohibition directed at the District Land Registrar and Surveyor, Migori, prohibiting them from implementing the awards
  3. 3.Each party to bear their own costs of the application

Authorities

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Legislation

  • District Land Disputes Tribunal Act No. 18 of 1990 (repealed)Sections 3 and 4
  • Registered Land Act Cap 300 (repealed)Sections 27 and 28
  • Constitution of KenyaArticle 40
  • Law of Succession Actnull

Cases cited (3)

  • Kenya National Examinations Council vs R – Exparte Godfrey Gathanyi Njoroge & 9 Others
    (1997) e KLR Civil Appeal No. 266 of 1996
  • R vs Land Disputes Tribunal (Kisumu) Exparte Fanuel Okoth Onyango
    Kisii ELCC Misc Application No. 35 of 2012
  • Kimote Musau vs Makumi Muluva Muthwethau & 2 others
    (2015) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court under the Law Reform Act (orders of certiorari and prohibition); Article 40 of the Constitution invoked by the applicant

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, "George Adwari Opengo v Chairman Nyanza Provincial Land Appeals Committee & another [2018] KEELC 3847 (KLR)", Case Analysis (2018). Judicial Review Application (Notice of Motion) dated 14th October 2011, Migori High Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3847/eng@2018-03-13

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