Republic v The Ekerenyo Land Disputes Tribunal…1 St Respondent Chief Magistrate’s Court & 2 others

EXPARTE……………………………………JAMES NCHOBERA GESAMI RULING The interested parties herein went to Ekerenyo Land Disputes Tribunal to complain that in 1986 they had bought the exparte applicant’s land parcel no. LR NM/Boisanga/2321 in 1986 to share equally and eventually moved and occupied the same but that the exparte applicant had refused to transfer the same to them. The Tribunal agreed with them and made decision ordering that the exparte applicant transfers the land to them. The exparte applicant was aggrieved by the award, which the Chief Magistrate’s Court adopted as judgment of the court, and came to this court and invoked its judicial review powers under Order 53rule 3 of the Civil Procedure Rules. He was granted leave subsequent to which he filed this motion. An order of Certiorari is being sought to remove into this court and quash the proceedings and decision of the Tribunal (1st respondent) and also the decision of the subordinate court (2nd respondent) which adopted the award. The application was served and elicited response from only the interested parties. Mr. Ondari represented the exparte applicant and Mr. Bwonwonga was for the interested parties. I have considered the papers filed by each side and the respective submissions. The submission by Mr. Ondari for the exparte applicant that the Tribunal did not have jurisdiction to entertain or determine this dispute is legally sound. Section 3(1)of the Land Disputes Tribunal Act (no.18 of 1990) empowers the Tribunal to handle all cases of civil nature involving the decision of, or the determination of boundaries to land, including land held in common; a claim to occupy or work land; and trespass to land. It does not have jurisdiction to hear or determine disputes relating to title to land.(See Jotham Amunavi .V. The Chairman Sabatia Division Land Disputes Tribunal And Another, Civil Appeal no. 256 of 2002 at Kisumu). The award handed down by the Tribunal herein, and adopted by the court, has to be implemented. When that happens the exparte applicant land will not only be taken away but will also be subdivided into two for the portions to go to the interested parties. The exparte applicant will have his title to the land lost in the process. The Tribunal acted well outside the powers the Act above has donated to it. The proceedings and the award were a nullity. The same for the adoption and resultant decree of the subordinate court. The exparte applicant has established his case, and the court hereby removes to it the proceedings and award of the Tribunal and the order and decree by the subordinate court and quashes them by order of Certiorari. Costs will be paid by the interested parties. Dated, signed and delivered at Kisii this 20th Day of January, 2009. A.O.MUCHELULE JUDGE 20/1/2010 Before A.O.Muchelule-J Court clerk-Bibu Mr. Ombicha for Mr. Ondari-present COURT: Ruling in open court A.O.MUCHELULE

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JUDGE 20/1/2010

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