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ELCAllowedNotice of Motion dated 21st November 2011 (Judicial Review), Nyamira Senior Principal Magistrate's Court Land Case No. 29 of 2011 related· [2021] KEELC 769 (KLR)

Republic v Chairman, Nyamusi Land Disputes Tribunal & 2 others Ex parte Prisila Nyabeto & 4 others [2021] KEELC 769 (KLR)

High Court of Kenya
23 November 2021
JOJ.M Onyango
1,314 words in judgment
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The bottom line

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Kenya's High Court quashed a Land Disputes Tribunal award over registered land title, confirming such tribunals simply have no power to decide ownership disputes.

What this practically means

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Executive summary

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The Applicant moved the High Court at Kisii by Notice of Motion dated 21st November 2011 under Order 53 Rule 3(1) of the Civil Procedure Rules seeking an order of certiorari to quash the 2nd Respondent's order of 13th October 2011 and the entire proceedings pursuant to the 1st Respondent's award of 8th September 2011, adopted as judgment in Nyamira Senior Principal Magistrate's Court Land Case No. 29 of 2011. The Applicant, whose deceased father's parcel NORTH MUGIRANGO/BOKEIRA/1/1880 was the subject of the dispute, argued the Tribunal lacked jurisdiction over registered land and that the 3rd Respondent had no claim. The Respondents opposed on grounds that the Tribunal acted within its jurisdiction and that the Applicant lacked locus standi. The matter was dismissed for want of prosecution in 2017, reinstated in 2020, and no submissions were filed. Framing three issues, the court held, following Jonathan Amunavi (Court of Appeal) and section 159 of the repealed Registered Land Act, that the Nyamusi Land Disputes Tribunal had no jurisdiction as the dispute touched on title to land. It further held, applying Macfoy v United Africa Company, that the adoption of the Tribunal's award by the magistrate's court was a nullity. The court granted the application, issued the order of certiorari quashing the proceedings, and ordered the 3rd Respondent to bear the costs.

Key legal issues

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01

Whether the Land Disputes Tribunal had jurisdiction over the dispute

Holding

The Tribunal had no jurisdiction because the dispute concerned title to registered land, which is outside section 3(1) of the Land Disputes Tribunal Act.

Reasoning

Section 3(1) of the Land Disputes Tribunal Act confines tribunals to boundary disputes, claims to occupy or work land, and trespass. Section 159 of the Registered Land Act reserves suits relating to title to registered land for the High Court or Resident Magistrate's Court. The Court of Appeal in Jonathan Amunavi, binding on this court, held that disputes over title and beneficial interest are outside a tribunal's remit. The claim to transfer ¾ acre from a parcel registered in a deceased person's name touched on title.

p. 3
02

Whether the adoption of the Tribunal's award by the Magistrate's Court was competent

Holding

The adoption was a nullity because proceedings founded on a void act are themselves void.

Reasoning

Following the finding on jurisdiction, the court applied the principle in Macfoy v United Africa Company Ltd that a void act is incurably bad and every proceeding founded on it collapses. The magistrate's court adoption of the award could not stand.

p. 3

Legal principles established

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  • Land Disputes Tribunals have no jurisdiction over disputes touching on title to registered land; such disputes fall to the High Court or Resident Magistrate's Court under section 159 of the Registered Land Act.
  • An award of a tribunal without jurisdiction, and any adoption of it, is a nullity.

Court orders

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  1. 1.An order of certiorari removing to the High Court and quashing the 2nd Respondent's order dated 13th October 2011 together with all the entire proceedings arising therefrom and/or connected therewith pursuant to the 1st Respondent's award dated 8th September 2011, which was read and adopted as a judgment of the Court in Nyamira Senior Principal Magistrate's Court Land Case No. 29 of 2011.
  2. 2.The costs of the application shall be borne by the 3rd Respondent.

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1)
  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)Section 3(1)
  • Registered Land Act Cap 300 (repealed)Section 159

Cases cited (3)

  • Jonathan Amunavi v Chairman Sabatia Division Land Disputes Tribunal and Enos Kenyani Amunavi
    Civil Appeal No. 256 of 2002 at Kisumu
  • Republic v Kajiado North District Ngong Land Disputes Tribunal, Senior Resident Magistrate Kajiado
    [2014] eKLR
  • Macfoy vs. United Africa Company Limited
Jurisdiction invoked
Order 53 Rule 3(1) of the Civil Procedure Rules (judicial review for certiorari)

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, Nyamusi Land Disputes Tribunal & 2 others Ex parte Prisila Nyabeto & 4 others [2021] KEELC 769 (KLR)", Case Analysis (2021). Notice of Motion dated 21st November 2011 (Judicial Review), Nyamira Senior Principal Magistrate's Court Land Case No. 29 of 2011 related. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/769/eng@2021-11-23

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