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ELCAllowedELC JR. No. 20 of 2020· [2021] KEELC 2798 (KLR)

Republic v Likuyani Land Dispute Tribunal, Chief Magistrate’s Court Kakamega, Subukia Arimi Self Help Group & John Okwi & 2 others; Ex Parte Javan Mbolela & others (Environment and Land Judicial Review Case 20 of 2020) [2021] KEELC 2798 (KLR)

Environment and Land Court
22 June 2021
2,029 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court quashed a Land Disputes Tribunal's decision because tribunals cannot decide who owns land.

What this practically means

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Executive summary

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This was an application for judicial review by Javan Mbolela and others seeking certiorari to quash the decision of the Likuyani Land Disputes Tribunal, which had been adopted as a judgment of the Kakamega Chief Magistrate's Court in Award No. 104 of 2005. The ex parte applicants argued that the tribunal lacked jurisdiction: the District Magistrate who adopted the award had no jurisdiction; Subukia Arimi Self Help Group had no legal personality to own land; the dispute involved 500 acres; the tribunal ordered specific performance of a land sale contract void under the Land Control Act; and the award would nullify a subsisting judgment in Eldoret HCCC No. 303 of 1977 under which the applicants occupied the land. The respondents submitted the parcels complained of were not those purchased, that the applicants should execute their decrees rather than file fresh proceedings, and that the tribunals enjoyed statutory jurisdiction under Act No. 18 of 1990. Applying the settled judicial review tests of illegality, irrationality and procedural impropriety, and construing Section 3(1) of the Land Disputes Tribunal Act, the court held that the dispute was one of ownership of land arising from a sale agreement, and that the tribunal's ordering of subdivision and issuance of title deeds fell outside its statutory mandate. The tribunal had acted ultra vires. The court granted certiorari quashing the tribunal's proceedings and decision and a prohibition order against the tribunal and the Chief Magistrate's Court in Kakamega CM Award No. 104 of 2005, with costs to the ex parte applicants.

Key legal issues

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Whether the Likuyani Land Disputes Tribunal acted ultra vires its statutory jurisdiction

Holding

The tribunal's decision on ownership of land and ordering subdivision and issuance of title deeds was outside its jurisdiction under Section 3(1) of the Land Disputes Tribunal Act and was ultra vires; certiorari and prohibition were granted.

Reasoning

The court examined Section 3(1) of the Land Disputes Tribunal Act, confining tribunals to disputes over division or boundaries of land, claims to occupy or work land, and trespass. On perusal of the tribunal's proceedings and verdict, the court found the dispute was one of ownership arising from a sale agreement, and the tribunal ordered subdivision and issuance of title deeds - matters beyond its statutory mandate. A tribunal without jurisdiction acts ultra vires, tainting its decision with illegality warranting judicial review.

p. 3
02

Grounds for judicial review relief

Holding

The court applied the settled test that judicial review lies for illegality, irrationality or procedural impropriety, and reviewed the decision-making process rather than its merits.

Reasoning

Relying on Odunga J in Republic v Kenya Revenue Authority Ex-Parte Tradewise Agencies quoting Pastoli v Kabale District Local Government Council, the court restated that a judicial review applicant must show the impugned decision is tainted with illegality, irrationality or procedural impropriety. Acting without jurisdiction or ultra vires is an instance of illegality. Judicial review concerns the decision-making process, not the merits, and the grant of relief remains discretionary.

p. 2

Legal principles established

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  • A Land Disputes Tribunal, whose jurisdiction was limited to boundary disputes, claims to occupy or work land, and trespass, lacked jurisdiction to determine ownership of land or order specific performance of a land sale contract.

Court orders

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  1. 1.An order of certiorari to remove into this court and quash the Likuyani Land Disputes Tribunal proceedings and decision
  2. 2.A prohibition order prohibiting the said tribunal or the court in Kakamega CM Award No. 104 of 2005
  3. 3.Costs of the application to the ex parte applicant

Authorities

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Legislation

  • Land Disputes Tribunal Act (now repealed)Section 3(1)
  • Civil Procedure Rules (2010)Order 53
  • Law Reform Act, Cap 26, Laws of KenyaPart VI
  • Land Control Act
  • Government Proceedings Act

Cases cited (8)

  • Republic v Kenya Revenue Authority & Another Ex-Parte Tradewise Agencies
    (2013) eKLR
  • Pastoli vs. Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • Republic vs. Kenya Revenue Authority ex parte Yaya Towers Limited
    (2008) eKLR
  • Republic vs. Judicial Service Commission of Kenya Ex Parte Stephen S. Pareno
    Nairobi HCMA No. 1025 of 2003 (2004) 1 KLR 203
  • Welamondi vs The Chairman, Electoral Commission of Kenya
    (2002) 1 KLR
  • Republic vs Chairperson Business Premises Rent Tribunal & another Ex-parte Keiyo Housing Cooperative Society Ltd & Another
    (2014) eKLR
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    Civil Application No. 307/2003
  • Washington O. Bren and Others vs. Kiptarus Arap Rotich and John Agui
    Eldoret HCCC No. 303 of 1977
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (2010) and the Law Reform Act, Cap 26 (Part VI)

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 Likuyani Land Dispute Tribunal, Chief Magistrate’s Court Kakamega, Subukia Arimi Self Help Group & John Okwi & 2 others; Ex Parte Javan Mbolela & others (Environment and Land Judicial Review Case 20 of 2020) [2021] KEELC 2798 (KLR)", Case Analysis (2021). ELC JR. No. 20 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2798/eng@2021-06-22

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