REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Miscellaneous Application 3 of 2006 REPUBLIC………………………………………………………APPLICANT -VERSUSMARANI LAND DISPUTES TRIBUNAL…..…………1ST RESPONDENT THE CHIEF MAGISTRATE’S COURT AT KISII……2ND RESPONDENT RICHARD MAKORI NYAKUNDI…...…………………3RD RESPONDENT AND FRANCIS OMWENGA OBONYO……........…………………….EXPARTE RULING The exparte applicant is the registered proprietor of land parcel no. West Kitutu/Bokingoina/1559 which measures about 1.2. Hectares. The 3rd respondent lodged a claim against him in regard to the land with the 1st respondent. This was Land Disputes Case no. 9 of 2004 at Marani. The Tribunal heard the claim between the parties and decided that the exparte applicant transfers all that land to the 3 rd respondent. The award was filed at the Chief magistrate’s Court at Kisii ( 2nd respondent) for adoption and it was at that point that the exparte applicant sought, and obtained , leave to bring this judicial review motion for an order of Certiorari to remove into this court and quash the proceedings and decision of the 1st and 2nd respondents. The application was on the ground that the Tribunal had exceeded its jurisdiction provided by section 3(1) of the Land DisputesTribunal Act(no. 18 of 1990) when it heard and determined the dispute the way it did . The chairman of the Tribunal swore a replying affidavit in which he claimed they had jurisdiction to hear and determine the dispute which, according to him, was a customary law claim. This was registered land and the provision of sections 27and 28 of the Registered land Act (Cap 300) gave the exparte applicant absolute and indefeasible title. Customary law was extinguished by the registration, unless the 3rd respondent’s claim was noted as an overriding interest or he had a claim of a beneficiary under a trust.
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The proceedings before the Tribunal revealed the exparte applicant had obtained title to the land following succession proceedings in Cause no. 294 of 2002 in the High Court at Kisii. The grant was confirmed to him as absolute owner of the land. If the 3 rd respondent was aggrieved by the grant he ought to have sought its revocation or annulment under section 76of the Law ofSuccession Act (Cap. 160), but not go to complain to the Tribunal. Section 3(1) of the Land Disputes Tribunal Act did not allow the Tribunal to entertain the 3rd respondent’s claim of ownership against the exparte applicant’s registered right.(See BeatriceM’Marete.V. the Republic and others, Civil Appeal no. 259 of 2000at Nyeri). It follows that the proceedings and award were a nullity. The same for the proceedings now before the 2nd respondent. The application is allowed with costs. Dated, signed and delivered at Kisii this 1st Day of February, 2009. A.O.MUCHELULE JUDGE 1/2/2010 Before A.O.Muchelle-J Court clerk-Bibu Mr. Ombachi for exparte applicant Court –Ruling in open court A.O.MUCHELULE JUDGE 1/2/2010
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