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ELCAllowedJudicial Review Case No. 5 of 2018· [2020] KEELC 3308 (KLR)

Republic v Chairman,Siaya Land Dispute Tribunal & another; Joel Ogola Osuru & another (Interested Parties); Exparte Applicant:John Odek Osuru [2020] KEELC 3308 (KLR)

Environment and Land Court
28 February 2020
923 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Land parcel Uholo/Tingare/470 (4.0 Ha), originally registered on 17/2/1970 in the name of Osuri Oyuona, was in 2001 registered in unclear circumstances in the name of his third son, John Odek Osuru, the ex-parte Applicant. His brother Joel Ogola Osuru and sister-in-law Sisilia Odinga Odhiambo complained to the Siaya Land Dispute Tribunal in case No. 80 of 2006. On 26/2/2009 the Tribunal awarded the land to the three parties in equal shares of 1 1/3 Ha each and directed a survey and issuance of new titles. The award was filed in the Principal Magistrate's Court at Siaya in Misc. Land Dispute Tribunal No. 22 of 2009 and adopted as the judgment of the court on 7/4/2009. The ex-parte Applicant moved the court by notice of motion seeking certiorari to quash the adoption, contending the Tribunal lacked jurisdiction and its decision was a nullity. The Respondents and Interested Parties opposed. The court identified the sole issue as whether the Tribunal had jurisdiction. Applying section 3 of the repealed Land Dispute Tribunals Act, the court held that the Tribunal could properly entertain a claim to occupy or work the land, but exceeded its jurisdiction by ordering cancellation of title, redistribution and issuance of new titles. It granted certiorari quashing the Tribunal decision and the magistrates' court adoption, while directing that the orders not be used to evict the Interested Parties pending lawful determination of the dispute. Costs went to the ex-parte Applicant.

Key legal issues

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01

Jurisdiction of the Land Dispute Tribunal

Holding

The Tribunal was competent to hear a claim concerning the right to work and occupy the land, but exceeded its jurisdiction by ordering cancellation of title, redistribution of the land and issuance of new titles.

Reasoning

Section 3 of the repealed Land Dispute Tribunal Act confined Tribunals to civil disputes over division or determination of boundaries of land, claims to occupy or work land, and trespass. The claim by the Interested Parties that they were working and occupying the land fell within that mandate, so the reference was properly before the Tribunal. However, the award directed cancellation of the registration of the ex-parte Applicant and equal division of the parcel among three parties, which the statute did not empower the Tribunal to order; that portion of the award was a nullity amenable to quashing by certiorari.

p. 2
02

Protection of parties in occupation pending lawful determination

Holding

Although the Tribunal award was quashed, the court directed that its orders should not be used to evict the Interested Parties since the underlying dispute had not been determined through a lawful procedure.

Reasoning

The court observed that the parties remained in occupation of the land as they were when it was registered in the ex-parte Applicant's name. Quashing a Tribunal award for excess jurisdiction does not by itself determine ownership; the substantive dispute between the sons of the original registered proprietor remained unresolved. The court therefore tempered the certiorari with a caution against using the quashing order to evict the Interested Parties pending determination by a properly conferred forum.

p. 2

Legal principles established

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  • Land Dispute Tribunals under the repealed Land Dispute Tribunal Act had jurisdiction limited to disputes over division or boundaries of land, claims to occupy or work land, and trespass, and had no power to cancel title or order distribution of registered land.

Court orders

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  1. 1.An order of certiorari quashing the decision of Siaya Land Dispute Tribunal case no. 80 of 2006 (referred to in the orders as no. 80 of 2009) made on 26/2/2009
  2. 2.An order quashing the order of the S.P.M. adopting the Tribunal award in Land Dispute Tribunal case no. 22 of 2009 adopted on 7/4/2009
  3. 3.Costs of the suit to the Ex-parte Applicant
  4. 4.Any order made shall not be used to evict the Interested Parties from the land

Authorities

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Legislation

  • Land Dispute Tribunals Act (repealed)Section 3(1)
Jurisdiction invoked
Judicial review jurisdiction of the High Court (certiorari), order transferring to the Environment and Land Court; Fair Administrative Action framework not expressly cited - application for certiorari under judicial review in respect of a Land Dispute Tribunal award

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 Chairman,Siaya Land Dispute Tribunal & another; Joel Ogola Osuru & another (Interested Parties); Exparte Applicant:John Odek Osuru [2020] KEELC 3308 (KLR)", Case Analysis (2020). Judicial Review Case No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3308/eng@2020-02-28

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