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ELCAllowedJudicial Review Application (Notice of Motion dated 25th June, 2004)· [2019] KEELC 890 (KLR)

Republic v Land Disputes Tribunal Chairman, Kangundo Division & another; Peter Mutuku & 2 others (Intended Interested Parties); Francis Mutuku Wambua (Interested Party); Ex Parte Philip Kieti Kitonyi & another [2019] KEELC 890 (KLR)

High Court of Kenya
4 October 2019
OAO.A. Angote
1,017 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 voided a Land Disputes Tribunal's award because tribunals had no power to decide who owns registered land.

What this practically means

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Executive summary

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By a Notice of Motion dated 25th June, 2004 filed under the then Order LIII of the Civil Procedure Rules, the Ex-parte Applicants sought judicial review orders of certiorari to quash the award of the Kangundo Land Disputes Tribunal read to parties on 22nd April, 2003 and the subsequent decree of the court made on 16th January, 2004, concerning parcel Kangundo/Ising/1946. They argued they were wrongly sued before the Tribunal, being neither registered owners nor administrators of the registered proprietors' estates, and that the Tribunal lacked jurisdiction over ownership of registered land and breached natural justice. The Respondents filed Grounds of Opposition contending no leave was obtained and the Statement of Facts was worthless; the Interested Party raised a preliminary objection that the application was defective for not stating the date leave was granted. The court found leave had in fact been granted on 7th June, 2004 and the motion filed within the directed 21 days. On the merits, the court held that under Section 3(1) of the repealed Land Disputes Tribunals Act, Tribunals could only determine boundary disputes, claims to occupy or work land, and trespass - not ownership of registered land. The land was registered in 1978 in the names of Nzyoka, Musembi and Nzomo Mutua, who were not parties. Since only the court could nullify a title deed under the repealed Registered Land Act, the Tribunal acted ultra vires and its award was a nullity. The court allowed the motion, declared the award and decree null and void, and ordered each party to bear his own costs.

Key legal issues

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01

Jurisdiction of Land Disputes Tribunals over registered land ownership

Holding

The Tribunal acted ultra vires and its award was a nullity, as it had no mandate to deal with ownership of registered land or order its revocation/sub-division, especially where the registered proprietors were not parties.

Reasoning

Section 3(1) of the Land Disputes Tribunals Act limited Tribunals to boundary disputes, claims to occupy or work land, and trespass. The dispute here concerned ownership of registered land, held since 1978 by three proprietors in common who were never joined. Under the repealed Registered Land Act, only the court could nullify a title deed or cancel a register entry. The Tribunal's award exceeding this jurisdiction was therefore ultra vires and a nullity.

p. 2
02

Leave to apply for judicial review

Holding

Leave had been granted on 7th June, 2004 and the Notice of Motion was filed within the directed 21 days, so the objection that leave was not obtained failed.

Reasoning

The Respondents argued the Applicants never sought leave. The court perused the file and confirmed the Chamber Summons dated 29th March, 2004 was allowed on 7th June, 2004, with directions to file the substantive motion within 21 days, which was complied with. The Notice of Preliminary Objection on defectiveness also failed on this basis.

p. 2

Legal principles established

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  • Land Disputes Tribunals lacked jurisdiction to determine ownership of registered land or order its sub-division; only the court could nullify a title deed or cancel a register entry under the Registered Land Act.

Court orders

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  1. 1.The Award/decision of the Land Disputes Tribunal Kangundo read to parties on 22nd April, 2003 and the orders/decree of the court made on 16th January, 2004 in respect of parcel of land known as Kangundo/Isinga/1946 be and is hereby declared null and void
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Land Disputes Tribunals Act (repealed)Section 3(1)
  • Registered Land Act (repealed)
  • Civil Procedure RulesOrder LIII Rules 1, 3(1), (2) and (3)
Jurisdiction invoked
Order LIII Rules 1 and 3(1), (2) and (3) of the Civil Procedure Rules (judicial review); Article 159(2)(d) of the Constitution invoked by parties

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 Land Disputes Tribunal Chairman, Kangundo Division & another; Peter Mutuku & 2 others (Intended Interested Parties); Francis Mutuku Wambua (Interested Party); Ex Parte Philip Kieti Kitonyi & another [2019] KEELC 890 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 25th June, 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/890/eng@2019-10-04

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