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ELCDismissedELC Misc Application No. 9B of 2017 (Formerly Nakuru Misc No. 234 of 2012)· [2019] KEELC 184 (KLR)

Republic v District Land Registrar & 2 others Exparte Ruth Wangari Waihenya; Charles Gichuki Murage (Interested Party) [2019] KEELC 184 (KLR)

Environment and Land Court
26 November 2019
4,330 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a bid to overturn a land boundary ruling, confirming that land claims must be filed within 12 years.

What this practically means

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Executive summary

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This was a judicial review application by Ruth Wangari Waihenya seeking certiorari to quash the decision of the Senior Principal Magistrate's Court at Nyahururu in Land Dispute No. 10 of 2012, which had adopted the award of the Nyandarua Olkalau Division Land Disputes Tribunal in Case No. 6 of 2004, and prohibition restraining the District Land Registrar from implementing that decision. The ex-parte applicant argued that the Tribunal had exceeded its jurisdiction by making an award entailing tampering with title, that the Tribunal misapplied the law on limitation, and that it acted unreasonably and in breach of natural justice. The interested party, Charles Gichuki Murage, countered that the award merely requested the Land Registrar and District Surveyor to amend maps without altering titles, that the claim was time barred as a claim for recovery of land brought 28 years after the cause of action arose, and that the application was res judicata regarding the Provincial Appeals Committee decision. Justice M.C. Oundo framed three issues: whether the Tribunal's award was in excess of jurisdiction, whether the application was merited, and costs. The court held that the Tribunal dealt with a boundary dispute squarely within its jurisdiction under Section 3 of the repealed Land Disputes Tribunals Act; that the magistrate was statutorily bound to enter judgment in terms of the award; and that the claim was time barred under Section 7 of the Limitation of Actions Act and Section 13(3) of the Land Disputes Tribunals Act. Certiorari and prohibition were therefore unavailable. The application was dismissed with costs to the interested party on 26th November 2019.

Key legal issues

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01

Whether the Land Disputes Tribunal acted in excess of jurisdiction by making an award entailing tampering of title

Holding

The Tribunal dealt with a boundary dispute which was within its statutory jurisdiction under Section 3 of the Land Disputes Tribunals Act

Reasoning

Section 3 of the repealed Act vests Tribunals with jurisdiction over civil disputes as to determination of boundaries to land, claims to occupy or work land, and trespass to land. The court found the dispute concerned boundaries between parcels Nyandarua/Olkalau Central 55 and 20, squarely within that jurisdiction. The award did not alter or purport to alter the respective titles by adding or excising land, and the magistrate was bound to adopt the award under Section 7(2).

p. 5
02

Whether the claim before the Tribunal was time barred under the Limitation of Actions Act

Holding

The claim was time barred as it was an action to recover land brought more than twelve years after the cause of action accrued

Reasoning

The Plaintiff's own pleadings in the Tribunal showed the cause of action arose before 1976, yet the claim was taken to the Tribunal in 2004, some 28 years later. Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years, and Section 13(3) of the Land Disputes Tribunals Act prohibits Tribunals from entertaining time-barred proceedings.

p. 6
03

Whether certiorari and prohibition should issue

Holding

Both orders were refused because the Tribunal did not act in excess of jurisdiction

Reasoning

Certiorari issues only where a decision is made without or in excess of jurisdiction or where rules of natural justice are not complied with. Since the Tribunal acted within jurisdiction and the claim was properly adopted by the magistrate as required by statute, there was no basis for either prerogative order.

p. 6

Legal principles established

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  • Once a magistrate receives an award from a Land Disputes Tribunal, they are under a statutory duty to enter judgment in terms of the award and may not alter, amend, question or set it aside
  • Section 13(3) of the Land Disputes Tribunals Act bars Tribunals from entertaining proceedings where the time for bringing the proceedings is barred under limitation law

Court orders

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  1. 1.The ex-parte Applicant's application dated 24th July 2012 was dismissed
  2. 2.Costs awarded to the Interested Party

Authorities

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Legislation

  • Land Disputes Tribunals Act (Chapter 303A, repealed)Sections 3, 4, 7, 7(1), 7(2), 8, 8(1), 13(3)
  • Limitation of Actions ActSection 7
  • Registration of Titles Act (now repealed)Section 60(1)
  • Registered Land Act, Cap 300 (now repealed)null
  • Civil Procedure ActSection 7

Cases cited (10)

  • Owners of Motor Vessel ‘Lilian S’ vs Caltex Oil the (Kenya) Ltd
    [1989] KLR 1
  • Republic vs Chairman of the Rent Restriction Tribunal & Another ex-parte Ezekiel Machogu & 3 Others
    [2013] eKLR
  • Kenya Ports Authority vs Industrial Court of Kenya & 2 Others
    [2014] eKLR
  • Compar Investments Limited vs Kenya Urban Roads Authority
    [2014] eKLR
  • JGH Marine A/S Western Marine Services Ltd CNPC Northeast Refining and Chemical Engineering Co. Ltd/ Pride Enterprises vs Public Procurement Administrative Review Board & 2 others
    [2015] eKLR
  • Muthoni Van Someren vs Kieni West Land Disputes Tribunal & 4 Others
    [2014] eKLR
  • Municipal Council of Mombasa vs Republic, Umoja Consultant Ltd
    (2002) eKLR
  • Peter Ouma Mitai vs John Nyarara
    [2008] eKLR
  • Zedekiah M Mwale vs Bikeke Farm Directors & Another
    [2004] eKLR
  • Kenya National Examination Council vs Republic (Exparte Geoffrey Gathenji & Another
    Civil Appeal No. 266 of 1996
Jurisdiction invoked
Judicial review (certiorari and prohibition) under the prerogative orders jurisdiction of the High Court/Environment and Land Court, pursuant to leave granted on 19th July 2012 by Justice Anyara Emukule

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 District Land Registrar & 2 others Exparte Ruth Wangari Waihenya; Charles Gichuki Murage (Interested Party) [2019] KEELC 184 (KLR)", Case Analysis (2019). ELC Misc Application No. 9B of 2017 (Formerly Nakuru Misc No. 234 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/184/eng@2019-11-26

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