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ELCPartially AllowedBusia ELRC Petition (Constitutional) dated 3rd May 2019· [2020] KEELC 658 (KLR)

George Christopher Odondo (Suing as the Donee of Aloys Odondo) v Francis Tobias Akello & another [2020] KEELC 658 (KLR)

Environment and Land Court
19 November 2020
AOA. Omollo
3,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land tribunal's orders because they took away registered land titles without hearing the affected owners.

What this practically means

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Executive summary

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The Petitioner, suing as donee of Aloys Odondo under a power of attorney, challenged the orders of the Funyula Land Disputes Tribunal in Case No. 33 of 2008, upheld by the Appeals Tribunal and adopted by the court in Busia PMCC Land Disputes Case No. 106 of 2008. Those orders directed cancellation of subdivision titles and amalgamation of parcel Samia/Luanda-Mudoma/693 with parcel 1369, producing title 3752 in the 1st Respondent's name. The Petitioner alleged infringement of his right to property, fair hearing and fair administrative action, arguing the tribunal lacked jurisdiction over registered land and condemned him unheard. The 1st Respondent contested the Petitioner's locus standi, contended the issues were sub judice in Court of Appeal Civil Appeal No. 96 of 2019, and argued the Land Registrar only rectified the register pursuant to court orders under section 79(2) of the Land Registration Act. The Attorney General supported the 2nd Respondent. The court framed three issues: violation of rights, availability of remedies, and competence of the Petition. It held that the tribunal's orders affected Aloys Odondo and those claiming through him without a hearing, violating section 77(9) of the repealed Constitution and article 50(1), and that the tribunal exceeded its jurisdiction under section 3(1) of the repealed Land Disputes Tribunals Act since it had no power to cancel registered titles. The court rejected the sub judice objection, holding the Petitioner was a stranger to the tribunal proceedings and pending appeal. The Petition succeeded in part: the tribunal award was declared unconstitutional and nullified; entries 4-9 in register 693 were cancelled; the amalgamation and resultant title were cancelled. The declaration that titles 2203 and 2290 were valid was refused, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the Land Disputes Tribunal's orders violated the Petitioner's right to a fair hearing

Holding

Yes - the tribunal's orders affected Aloys Odondo and those claiming through him, who were not parties to the tribunal proceedings and were not heard

Reasoning

At the time the 1st Respondent commenced the 2008 tribunal proceedings, title No. 693 had already been subdivided and resultant numbers registered in Aloys Odondo's name. The tribunal's orders cancelling titles and amalgamating parcels therefore directly affected Odondo and his assignees, who were neither party to the case nor afforded an opportunity to be heard, breaching section 77(9) of the repealed Constitution and now article 50(1).

p. 4
02

Whether the tribunal acted in excess of jurisdiction

Holding

Yes - the tribunal lacked jurisdiction over registered land interests and had no power to order cancellation of registered titles

Reasoning

Section 3(1) of the repealed Land Disputes Tribunals Act confined tribunals to boundary disputes, claims to occupy or work land, and trespass. Orders cancelling a registered title and amalgamating parcels fell outside this jurisdiction, such power being vested exclusively in the High Court.

p. 4
03

Whether this Court has jurisdiction over the Petition given a pending Court of Appeal appeal

Holding

Yes - the Petitioner was not a party to the tribunal suit or the pending appeal, and the pendency of an appeal does not oust the Court's constitutional jurisdiction

Reasoning

Article 22(1) entitles every person to institute proceedings claiming a rights violation, and article 23(1) and (3) empowers the Court to grant declaratory and judicial review orders. The 1st Respondent could have sought a stay but did not. Judicial review being available does not bar declaratory proceedings.

p. 4
04

Whether the 2nd Respondent (Land Registrar) is liable

Holding

No - the Registrar merely executed orders issued by the tribunal and adopted by the court; no blame is attributable

Reasoning

The court found the Land Registrar acted pursuant to the tribunal orders adopted in court, and thus found no basis to assign blame to the 2nd Respondent, despite the Petitioner's complaint of infringement of the right to fair administrative action under article 47.

Legal principles established

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  • A Land Disputes Tribunal had no jurisdiction to deal with an interest in land that had been registered, nor power to order cancellation of a registered title
  • Orders of a tribunal affecting persons who were not parties, made without hearing them, violate the right to a fair hearing
  • The availability of judicial review does not bar a party from pursuing declaratory constitutional proceedings

Court orders

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  1. 1.A declaration that the award/orders made by the Funyula Land Disputes Tribunal in case No. 33 of 2008, upheld by the Appeals Tribunal in Appeal Case No. 14 of 2009 and adopted by the Court in Busia PMCC Land Disputes Case No. 106 of 2008 are unconstitutional, unlawful, null and void (prayer (a))
  2. 2.An order nullifying the said tribunal award/orders (prayer (b))
  3. 3.An order cancelling entries Nos. 4, 5, 6, 7, 8 & 9 in the register of title No. Samia/Luanda-Mudoma/693 (prayer (c) as limited by the court)
  4. 4.An order cancelling the amalgamation of title Nos. L.R 693 and/or 2203, 2204, 2205 and 2290 with L.R 1369 and cancellation of the resultant title No. Samia/Luanda-Mudoma/3572 registered in the 1st Respondent's name (prayer (d))
  5. 5.Each party to bear their own costs of the Petition
Jurisdiction invoked
Articles 22(1), 23(1) and (3), 40, 47, 50(1) of the Constitution of Kenya 2010 and section 77(9) of the repealed Constitution

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, "George Christopher Odondo (Suing as the Donee of Aloys Odondo) v Francis Tobias Akello & another [2020] KEELC 658 (KLR)", Case Analysis (2020). Busia ELRC Petition (Constitutional) dated 3rd May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/658/eng@2020-11-19

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