Joel Macharia v Principal Magistrate’s Court Of Nyahururu & another;Mwihoti Women Group (Interested Party) & 2 others [2019] KEELC 5055 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Kipipiri Land Disputes Tribunal had jurisdiction to cancel a registered title
The tribunal acted ultra vires and in excess of jurisdiction because Section 3 of the repealed Land Disputes Tribunals Act did not confer jurisdiction to determine title to registered land
Section 3 of the repealed Act confines tribunals to disputes over boundaries, claims to occupy or work land, and trespass.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.
The role of the magistrate's court upon receipt of a tribunal award
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
Section 7(2) of the repealed Land Disputes Tribunals Act obliges the court to enter judgment in accordance with the tribunal's decision, upon which a decree issues and is enforceable.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.
Whether certiorari could issue against a tribunal that no longer exists
Yes; certiorari is directed at quashing an enforceable decision, not at keeping the decision-maker in existence
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.
Effect of failure to properly intitule judicial review proceedings in the name of the Republic
The defect in form is an irregularity curable by amendment and not fatal to an otherwise competent application, though it may affect costs
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.
Legal principles established
#- 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
#- 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.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.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.