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ELCAllowedJudicial Review Case (Notice of Motion dated 26th October, 2010)· [2019] KEELC 4636 (KLR)

Republic v Land Disputes Tribunal, Kitui District & another; Ngotho Ndelu (Interested Party) Ex parte Mukai Katama [2019] KEELC 4636 (KLR)

High Court of Kenya
8 February 2019
OAO.A. Angote
1,770 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court quashed a Kitui land tribunal's decision because tribunals cannot transfer or rectify registered land title—only courts can.

What this practically means

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Executive summary

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The Ex-parte Applicant sought certiorari to quash the proceedings and decision of the Kitui District Land Disputes Tribunal in Case No. 90 of 2008, adopted as judgment of the Principal Magistrate's Court at Kitui in Civil Case No. 13 of 2010, together with an order of prohibition against enforcement. She argued the Tribunal lacked jurisdiction to order transfer of land registered in favour of her deceased husband, that she was not the administratrix of the estate, and that the Tribunal neither heard her nor gave reasons. The Interested Party opposed on limitation grounds, contending the decision dated 18th March, 2009 was challenged outside the six-month period under Section 9(3) of the Law Reform Act and had, on adoption, ceased to exist. The court found the application was indeed filed outside the six-month period, on 7th October, 2010. However, following the Court of Appeal's decision in Stephen Kibowen and the Goldenberg authority, it held that where a decision is a nullity, time does not run against it. Turning to jurisdiction, the court found that under Section 3(1) of the Land Disputes Tribunals Act the Tribunal could only determine boundary disputes, claims to occupy or work land, and trespass; it had no power to determine ownership of land registered under the Registered Land Act or to order rectification of title, which only a court could order upon proof of fraud or mistake under Section 143(1). The Tribunal's award was therefore ultra vires and null and void, and its adoption by the lower court was equally null and void ab initio. The Notice of Motion was allowed with costs to be paid by the Interested Party.

Key legal issues

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01

Limitation for certiorari and the nullity exception

Holding

Although certiorari must be sought within six months, a null decision is not protected by that limitation period.

Reasoning

Section 9(3) of the Law Reform Act and Order 53 Rule 2 require certiorari applications within six months. The Applicant's application was filed well outside that period. However, following Stephen Kibowen v Chief Magistrate's Court Nakuru, the Court of Appeal has departed from strict application of the limitation where the impugned decision is a nullity, holding on Goldenberg authority that nullities are not covered by the six-month period. This being binding jurisprudence, the court entertained the application notwithstanding the delay.

p. 2
02

Jurisdiction of the Land Disputes Tribunal over registered land

Holding

The Tribunal exceeded its statutory mandate by ordering transfer/rectification of registered land.

Reasoning

Section 3(1) of the Land Disputes Tribunals Act limited the Tribunal to disputes on boundaries, claims to occupy or work land, and trespass. The suit land was registered in favour of the Applicant's late husband in 1980 under the Registered Land Act, and title could only be affected by a court order upon proof of fraud or mistake under Section 143(1). A Tribunal could not make a finding on ownership or direct rectification; its award was ultra vires and a nullity.

p. 3

Legal principles established

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  • Where a decision challenged is a nullity, time cannot run against it for purposes of the six-month certiorari limitation period.
  • A Land Disputes Tribunal had no jurisdiction to determine ownership of land registered under the Registered Land Act or to order rectification of such title.
  • An award of a Tribunal lacking jurisdiction is a nullity and there is nothing capable of adoption by a court.

Court orders

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  1. 1.An order of certiorari removing into the High Court and quashing the proceedings and decisions of Kitui District Land Disputes Tribunal Case No. 90 of 2008 read on 12th May, 2010 and adopted as judgment on 27th September, 2010 in Kitui Civil Case No. 13 of 2010
  2. 2.An order of prohibition prohibiting the Principal Magistrate's Court at Kitui from enforcing the Tribunal's decision adopted in Kitui Civil Case No. 13 of 2010
  3. 3.Costs of the application to be paid by the Interested Party

Authorities

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Legislation

  • Law Reform ActSection 9(3)
  • Civil Procedure RulesOrder 53 Rule 2
  • Land Disputes Tribunal Act (repealed)Section 3(1)
  • Registered Land Act (repealed)Section 143(1)

Cases cited (2)

  • Stephen Kibowen vs. The Chief Magistrate's Court Nakuru & 2 others
    Nakuru Civil Appeal No. 211 of 2013
  • Republic vs. Judicial Commission of Inquiry into the Goldenberg Affair & 3 others Ex-parte Mwalulu & 3 others
    (2004) eKLR
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act and Order 53 of the Civil Procedure Rules; supervisory jurisdiction of the High Court

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, Kitui District & another; Ngotho Ndelu (Interested Party) Ex parte Mukai Katama [2019] KEELC 4636 (KLR)", Case Analysis (2019). Judicial Review Case (Notice of Motion dated 26th October, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4636/eng@2019-02-08

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