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ELCPartially AllowedELC Case No 44 of 2018 (Formally H.C Judicial Review No 10 of 2017)· [2019] KEELC 5055 (KLR)

Joel Macharia v Principal Magistrate’s Court Of Nyahururu & another;Mwihoti Women Group (Interested Party) & 2 others [2019] KEELC 5055 (KLR)

Environment and Land Court of Kenya
21 May 2019
4,223 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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Kenya's Environment and Land Court quashed a Land Disputes Tribunal award that tried to cancel a registered land title, confirming tribunals have no power over title disputes.

What this practically means

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Executive summary

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Joel Macharia, the ex-parte applicant (also listed as 2nd interested party), moved the High Court by notice of motion dated 14th December 2010, later transferred to the Environment and Land Court at Nyahururu as ELC Case No 44 of 2018, seeking certiorari to quash an award of the Kipipiri Land Disputes Tribunal made on 21st April 2010 in Kipipiri Land Disputes Tribunal Claim No. 74 of 2006 (Mwihoti Women Group v Joel Macharia), and prohibition against its execution or adoption. The tribunal, which determined the dispute in the applicant's absence, found him a stranger and trespasser to parcel LR Nya/Ndemi/1769 and ordered the Land Registrar to revoke and cancel his title and issue a fresh title to Mwihoti Women Group. The State, for the Principal Magistrate's Court and the Tribunal, argued the magistrate was statutorily bound to adopt the award and that the decree could only be challenged in appropriate proceedings. The court framed three issues: whether the tribunal exceeded its jurisdiction, whether the application was merited, and costs. It held that Section 3 of the repealed Land Disputes Tribunals Act did not confer jurisdiction over title to registered land under the Registered Land Act, so the tribunal acted ultra vires and its award was null and void; that the magistrate was under a statutory compulsion to adopt the award but there was no evidence it had been adopted; and that certiorari lies even against a body that no longer exists. A defective intitulment was held curable. Certiorari and prohibition were granted with no order as to costs.

Key legal issues

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01

Whether the Kipipiri Land Disputes Tribunal had jurisdiction to cancel a registered title

Holding

The tribunal acted ultra vires and in excess of jurisdiction because Section 3 of the repealed Land Disputes Tribunals Act did not confer jurisdiction to determine title to registered land

Reasoning

Section 3 of the repealed Act confines tribunals to disputes over boundaries, claims to occupy or work land, and trespass. The tribunal ordered revocation and cancellation of title No Nya/Ndemi/1769 registered under the Registered Land Act, Cap 300, a matter outside its statutory mandate. A decision made without jurisdiction is ultra vires, null and void and warrants certiorari.

p. 5
02

The role of the magistrate's court upon receipt of a tribunal award

Holding

The magistrate was under a statutory compulsion under Section 7(2) to enter judgment in terms of the award and had no power to review or set it aside

Reasoning

Section 7(2) of the repealed Land Disputes Tribunals Act obliges the court to enter judgment in accordance with the tribunal's decision, upon which a decree issues and is enforceable. Aggrieved parties' remedy is an appeal to the Appeals Committee under Section 8(1) or judicial review in the High Court, not resistance at the adoption stage. The court found no evidence that the award had in fact been adopted.

p. 5
03

Whether certiorari could issue against a tribunal that no longer exists

Holding

Yes; certiorari is directed at quashing an enforceable decision, not at keeping the decision-maker in existence

Reasoning

Relying on David Mugo v Republic, the court held that where the body that made the decision has ceased to exist or become functus officio but its decision remains enforceable, certiorari must issue to quash it. The tribunal's decision was made without jurisdiction and was a nullity, and any adoption by the magistrate would have collapsed with it.

p. 6
04

Effect of failure to properly intitule judicial review proceedings in the name of the Republic

Holding

The defect in form is an irregularity curable by amendment and not fatal to an otherwise competent application, though it may affect costs

Reasoning

Judicial review applications should be instituted in the name of the Republic, per Mohamed Ahmed v R. However, following Republic v Charles Lutta Kasamani, a defect in form of title, misjoinder or non-joinder are irregularities not going to substance and curable by amendment. The court therefore declined to dismiss the application on that ground alone.

p. 4

Legal principles established

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  • A Land Disputes Tribunal has no jurisdiction to determine matters concerning title to registered land under the Registered Land Act; a decision made without jurisdiction is null and void
  • Once a magistrate receives a tribunal's award, the magistrate is under a statutory duty to enter judgment in terms of it and cannot alter, amend, question or set it aside
  • Certiorari will issue even where the body against which it is sought has ceased to exist, so long as its decision is still enforceable
  • A defective title or heading in judicial review proceedings is an irregularity curable by amendment and not a ground for dismissal

Court orders

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  1. 1.An order of certiorari issued removing into the Court the decision of the 2nd Respondent made and dated 24th April 2010 requiring the Land Registrar to revoke and cancel title No Nya/Ndemi/1769 and to issue a fresh title deed to Mwihoto Women's Group, for purposes of being quashed, and the same was quashed
  2. 2.An order of prohibition granted to stop the 1st Respondent and the interested parties from executing or implementing the order issued on 21st April 2010 arising from Kipipiri Land Dispute Tribunal Claim No. 74 of 2006
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder LIII Rule 3(1); Order 53
  • Law Reform ActSections 8 and 9
  • Land Disputes Tribunal Act (repealed)Sections 3, 7(1), 7(2), 8(1)
  • Registered Land Act, Cap 300 (repealed)
  • Magistrate's Act Cap 301
  • Civil Procedure Act

Cases cited (11)

  • Masagu Ole Koitelel Naumo v Principal Magistrate Kajiado Law Courts & another
    [2014] eKLR
  • Gitau Kamau vs Ndungu Kamau and the Chief Magistrate Court at Thika
    [2018] eKLR
  • Municipal Council of Mombasa vs Republic, Umoja Consultant Ltd
    (2002) eKLR
  • Mohamed Ahmed vs. R
    [1957] EA 523
  • Republic v Charles Lutta Kasamani & another ex parte Minister for Finance & Commissioner of Insurance as Licensing and Regulating Officers
    [2006] 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
  • Republic v Kajiado North District Ngong Land Disputes Tribunal & another Ex-Parte Caroline Wambui Ngunjiri & 2 others
    [2014] eKLR
  • Macfoy vs. United Africa Co. Ltd
    [1961] 2 ALL ER 1169
  • David Mugo vs. The Republic
    Civil Appeal No. 265 of 1997
Jurisdiction invoked
Judicial review jurisdiction under Order LIII Rule 3(1) of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act; transferred to the Environment and Land Court on 28th May 2018

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, "Joel Macharia v Principal Magistrate’s Court Of Nyahururu & another;Mwihoti Women Group (Interested Party) & 2 others [2019] KEELC 5055 (KLR)", Case Analysis (2019). ELC Case No 44 of 2018 (Formally H.C Judicial Review No 10 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5055/eng@2019-05-21

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