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ELCPartially AllowedNakuru ELC No. 165 of 2012 (Judicial Review)· [2021] KEELC 4044 (KLR)

Republic v Chairman, Mauche Land Dispute Tribunal & another Ex parte Elisha K. Rotich; Christopher K. Koech (Interested Party) [2021] KEELC 4044 (KLR)

Environment and Land Court of Kenya
11 March 2021
DOD. O. Ohungo
1,596 words in judgment
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The bottom line

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A Kenyan court quashed a Land Disputes Tribunal's decision because tribunals cannot decide who owns registered land — only courts can.

What this practically means

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Executive summary

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The ex parte applicant, registered proprietor of land parcel Nakuru/Sururu/203, sought judicial review orders of certiorari to quash a decision of the Mauche Land Disputes Tribunal dated 25th August 2006, which awarded the suit land to the interested party, and the judgment of the Chief Magistrate's Court dated 10th March 2011 adopting that decision in Land Dispute Case No. 5 of 2011. He argued he was never notified of the tribunal proceedings and was denied a fair hearing, and that the tribunal acted ultra vires by determining ownership of titled, private land. The interested party deposed that he was allocated the land in 1996 and issued a title in 1997, that the applicant entered on the land in 2006, and that the applicant was summoned but failed to appear before both the tribunal and the magistrate's court. Notably, the interested party conceded that the tribunal lacked jurisdiction. The respondents filed no response. The court isolated a single issue: whether the tribunal acted in excess of its jurisdiction. Section 3(1) of the Land Disputes Tribunals Act, 1990 (repealed) limited tribunals to boundary, occupation and trespass disputes, excluding title to or ownership of registered land. Since both parties held rival titles issued on 16th July 1997, the tribunal purported to determine ownership of registered land, exceeding its jurisdiction and rendering its decision a nullity. Applying Macfoy v United Africa Co Ltd, the court held the adoption proceedings were likewise incurably defective and void. It issued both orders of certiorari, quashing the tribunal's decision and the adopting judgment, and directed each party to bear its own costs, noting the interested party's concession and the pending substantive suit in Nakuru ELC No. 165 of 2012.

Key legal issues

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01

Whether the tribunal acted in excess of jurisdiction

Holding

Yes. The dispute before the tribunal involved two rival titles to registered land, an ownership question outside section 3(1) of the Land Disputes Tribunals Act, rendering its decision a nullity.

Reasoning

The Land Disputes Tribunals Act, 1990 limited tribunals to disputes over division or boundaries of land, claims to occupy or work land, and trespass. Determination of title to or ownership of registered land was excluded. Both parties held titles to Nakuru/Sururu/203 issued on 16th July 1997 under the Registered Land Act, so the tribunal was asked to decide ownership of registered land. Acting without jurisdiction, its proceedings and decision were null and void, and the subsequent adoption by the Chief Magistrate's Court was equally void and incurably defective.

Legal principles established

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  • The jurisdiction of Land Disputes Tribunals under section 3(1) of the Land Disputes Tribunals Act did not extend to determination of title to or ownership of registered land.
  • Proceedings and decisions of a court or tribunal that exercises a jurisdiction it does not possess are null and void, as are all proceedings founded on them.

Court orders

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  1. 1.An order of certiorari issued removing into the court and quashing the decision of the 1st respondent dated 25th August 2006 in Claim No. 31 of 2006
  2. 2.An order of certiorari issued removing into the court and quashing the judgment of the 2nd respondent dated 10th March 2011 adopting the 1st respondent's decision
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 47 and 48
  • Fair Administrative Action ActSections 4(1), (2) and (3)
  • Land Disputes Tribunal Act No. 18 of 1990 (repealed)Sections 3(1), 4
  • Environment and Land Court Act, 2011Section 31
  • Registered Land Act (repealed)

Cases cited (7)

  • Onyango Oloo vs. Attorney General
    (1986-1989) EA 456
  • Msagha vs Chief Justice & 7 Others
    Nairobi HCMCA no. 1062 of 2004 [2006] 2 KLR 553
  • Republic v Land Dispute Tribunal, Mauche Ex-Parte Dishon Nyutu Muiru & Another
    [2015] eKLR
  • Joseph Karobia Gicheru vs Michael Gachoki Gicheru
    [2013] eKLR
  • Owners of the Motor Vessel Lilian S vs Caltex Oil (Kenya Ltd)
    1989 KLR
  • Joseph Malakwen Lelei & another v Rift Valley Land Disputes Appeals Committee & 2 others
    [2014] eKLR
  • Macfoy vs. United Africa Co. Ltd
    [1961] 3 All E.R. 1169
Jurisdiction invoked
Judicial review jurisdiction of the High Court/Environment and Land Court under orders of certiorari; the ex parte applicant invoked Articles 47 and 48 of the Constitution and the Fair Administrative Action Act, and the court exercised supervisory jurisdiction over the tribunal's ultra vires decision.

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, Mauche Land Dispute Tribunal & another Ex parte Elisha K. Rotich; Christopher K. Koech (Interested Party) [2021] KEELC 4044 (KLR)", Case Analysis (2021). Nakuru ELC No. 165 of 2012 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4044/eng@2021-03-11

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