Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedJudicial Review Application (Notice of Motion dated 12th April, 2007)· [2019] KEELC 459 (KLR)

Josephat Mose Mairongi v Chairman Land DisputesTribunal Rachuonyo District & Jenipher Auma Awendo [2019] KEELC 459 (KLR)

High Court of Kenya
19 November 2019
2,578 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court quashed a Land Disputes Tribunal decision awarding someone's registered land, because tribunals can't decide title ownership.

What this practically means

#

Executive summary

#
This was a judicial review notice of motion dated 12th April 2007, brought under the Law Reform Act and Order LIII Rule 3 of the Civil Procedure Rules by Josephat Mose Mairongi, seeking an order of certiorari to quash the decision of the defunct Rachuonyo District Land Disputes Tribunal delivered on 22nd January 2007, which purported to find that his title to land parcel Kabondo/Kasewe/612 (2.8 hectares in Homa-Bay County) was fraudulently acquired and awarded the land to the interested party, Jenipher Auma Awendo. The applicant claimed he purchased the land in 1973, was registered as proprietor in 1975 and issued a title deed in 1977, and that the Tribunal heard the interested party's claim ex-parte without sufficient notice to him. The interested party opposed, claiming inheritance from her late husband who had inherited the land from his father, and argued the leave orders had lapsed. The respondent Tribunal did not participate despite service. The court framed three issues: the Tribunal's jurisdiction, whether the 2007 leave orders had lapsed, and entitlement to the orders sought. Relying on the Owners of Motor Vessel Lilian 'S' jurisdiction principle, the court held that the Tribunal, whose statutory jurisdiction was limited to trespass, boundary disputes and division of or work on land, acted without jurisdiction in adjudicating title to registered land; such a decision was void. The court further held the leave orders had not lapsed and that the applicant was denied a fair hearing contrary to Articles 50(1), 25(c) and 48 of the Constitution. Certiorari issued quashing the Tribunal's decision, with costs awarded against the interested party.

Key legal issues

#
01

Whether the Rachuonyo District Land Disputes Tribunal had jurisdiction to determine ownership/validity of title to registered land

Holding

The Tribunal was devoid of jurisdiction; its decision awarding the land to the interested party was a nullity and has been quashed by certiorari

Reasoning

Section 3 of the Land Disputes Tribunal Act limited the Tribunal's jurisdiction to trespass, boundary determination and division of or work on land. The Tribunal purported to adjudicate ownership of registered land and to direct de-registration of the applicant's title, exceeding its statutory mandate. A decision made without jurisdiction is void ab initio and cannot stand.

p. 4
02

Whether the leave/orders granted on 21st March 2007 had lapsed, rendering the matter spent

Holding

The orders did not lapse; the application was filed within the prescribed period, and the court had already on 25th March 2019 declared the application properly and timeously filed

Reasoning

Leave was granted on 21st March 2007 and the motion was filed within the prescribed time. Further, a notice of motion dated 27th September 2018 seeking a declaration that the application was properly and timeously filed was allowed on 25th March 2019, foreclosing the lapse argument raised by the interested party.

p. 4
03

Whether the applicant was entitled to the judicial review orders sought

Holding

Yes - the applicant was denied a fair hearing before the Tribunal and the Tribunal lacked jurisdiction, so certiorari was merited

Reasoning

The court found the applicant had a right to be heard before the Tribunal but was not served with sufficient notice. Articles 50(1), 25(c) and 48 of the Constitution guarantee an uncurtailed right to a fair hearing and access to justice. Combined with the Tribunal's lack of jurisdiction, the applicant was entitled to certiorari to quash the Tribunal's decision.

p. 4

Legal principles established

#
  • Jurisdiction of a court or tribunal flows from the Constitution or statute or both, and a tribunal without jurisdiction renders a void decision
  • A Land Disputes Tribunal under the Land Disputes Tribunal Act had jurisdiction limited to trespass, boundary determination and division of, or work on, land - not title/ownership disputes over registered land
  • A party denied a hearing before a tribunal is entitled to judicial review relief on grounds of breach of the right to fair hearing

Court orders

#
  1. 1.An order of certiorari to remove into the court and quash the proceedings and decision by the defunct Rachuonyo District Land Disputes Tribunal delivered on 22nd January 2007 involving dispute of ownership of the parcel of the suit land, KABONDO/KASEWE/612
  2. 2.Costs of the motion to be borne by the interested party

Authorities

#

Legislation

  • Law Reform ActChapter 26
  • Civil Procedure Rules (pre-2010)Order LIII Rule 3
  • Civil Procedure Rules, 2010Order 53 Rule 2
  • Constitution of Kenya, 2010Articles 159(1) and (2), 50(1), 25(c), 48
  • Land Disputes Tribunal ActSection 3 (No. 18 of 1990, repealed by section 31 of the Environment and Land Court Act)
  • Environment and Land Court ActSection 31
  • Evidence ActSection 107; sections 97 and 112 (cited by interested party)
  • Registered Land Act (repealed)Section 30
  • Land Registration ActSection 26(1) (2016 (2012))

Cases cited (16)

  • Mirko Blaekterman and another -vs- David Mwangi Muiruri and 2 others
    (2015) eKLR
  • Monica Mukulu Muteti -vs- Mutava Maingi
    (2019) eKLR
  • Owners of Motor Vessels Lilian S" -vs- Caltex Oil (K) Ltd
    (1989) eKLR; also cited as (1989) KLR 1
  • Republic -vs- Meru Central District Land Disputes Tribunal and others ex-parte Julius Kirima M'Ndewa
    (2007) eKLR
  • Arthi Highway Developers Ltd -vs- West End Butchery Ltd and 6 others
    (2015) eKLR
  • Tweddle -vs- Atkinson
    (1851) 2 KB 762
  • Combe -vs- Combe
    (1951) 2 KB 215
  • Nicholas Salat -vs- IEBC and others
    (2013) eKLR
  • Zachariah Okoth Obado -vs- Edward Akongo Oyugi and others
    (2014) eKLR
  • Fina Bank Ltd -vs- Spares and Industries Ltd
    (2000) eKLR
  • Great Lakes Company (U) Ltd -vs- Kenya Revenue Authority
    (2009) 1 KLR 720
  • Samwel Kamau Macharia and another -vs- Kenya Commercial Bank Ltd and 2 others
    Supreme Court of Kenya application No. 2 of 2011 (2012) eKLR
  • Republic -vs- Karisa Chengo and 2 others
    (2017) eKLR
  • Benjamin Leornard Macfoy United Africa Company Limited
    (1962) AC 152
  • Sceneries Limited -vs- National Land Commission
    (2017) eKLR
  • Republic -vs- Kenya Revenue Authority Ex-parte Yaya Tours Limited
    (2008) eKLR
Jurisdiction invoked
Law Reform Act (Cap 26) and Order LIII Rule 3 of the Civil Procedure Rules (judicial review of a subordinate tribunal's decision)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Josephat Mose Mairongi v Chairman Land DisputesTribunal Rachuonyo District & Jenipher Auma Awendo [2019] KEELC 459 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 12th April, 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/459/eng@2019-11-19

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