REPUBLIC OF KENYA IN THE HIGH COURT AT ELDORET Judicial Review 28 of 2009 REPUBLIC............................................................................................................APPLICANT AND THE LAND DISPUTE TRIBUNAL KOSIRAI DIVISION........................1ST RESPONDENT THE PRINCIPAL MAGISTRATE KAPSABET LAW COURTS...........2ND RESPONDENT THE MARAKWET DISTRICT COMMISSIONER................................3RD RESPONDENT AND KIPTOO ARAP KOGO......................................................................INTERESTED PARTY AND SAMUEL KIPCHUMBA KOGO......................................................EXPARTE APPLICANT DAVID KIPKEMBOI TEMUGE........................................................EXPARTE APPLICANT JUDGMENT On 31st July, 2009, Mwilu J, granted the applicants leave to apply for orders of certiorari to remove into this court for the purpose of quashing the award of the Land Disputes Tribunal Kosirai Division made on 16th November, 2006 and the decision of the Kapsabet Principal Magistrate adopting, as the court’s judgment, the said award on 30th June, 2009. Pursuant to that leave, the applicants lodged this Notice of Motion on 6th August 2009 seeking the said relief. The main grounds for the application are that the award was based on a claim which was statute barred and that the Kosirai Land Disputes Tribunal had no jurisdiction to entertain the claim. The Notice of Motion is supported by a statutory statement duly verified by an affidavit of Samuel Kipchumba Kogo, the 1st applicant. Both documents elaborate the two grounds. Annexed to the affidavit are a copy of the impugned award, a certificate of official search of the suit title, a Title Deed and proceedings before Kapsabet Principal Magistrate’s Court.
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The application as opposed by the interested party who has filed a replying affidavit. He has deposed, inter alia, that he purchased the suit property from one Jemutai Tapkelelei (deceased) and the applicants, as administrators of his estate, were properly sued before the said tribunal and that the decision of the tribunal was correct and just. Although the respondents filed grounds of opposition through the office of the Attorney General, counsel, instructed chose not to support the decision of the tribunal. The applicants and the interested party filed written submissions in which they reiterated the standpoints taken in their respective affidavits. I have considered the application, the pleadings filed and the submissions filed. Having done so, I take the following view of the matter. The applicants seek an order of certiorari to remove into this court for the purpose of quashing the decisions of Kosirai Land Disputes Tribunal made on 16th November, 2006 and the ruling of Kapsabet Principal Magistrate adopting the said award on 30th June, 2009. The award of the Tribunal is brief and I set it out below:“4. AWARD/VERDICT The tribunal had heard both sides of the interested parties and findings show that under our Nandi Customary Law the plaintiff Mr. Kiptoo Arap Kogo ID NO. 1909290is Awarded land measuring area (1.2) Acres from Nandi/Ngecheck/64 measuring area approximately (5.0) HA currently registered under the defendants: Mr. Samuel Kipchumba Kogo and Mr. David Kipkemboi Temuge. The balance of the remaining area (5.0) HA should be divided equally by the defendants: Samuel Kipchumba Kogo and Mr. David Kipkemboi Temuge.” It is trite that an order of certiorari can issue to quash a decision of an inferior tribunal if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with. In the matter at hand, the Land Disputes Tribunal-Kosirai could only determine disputes described in section 3(1) of the Land Disputes Tribunals Act No. 8 of 199 (now repealed). The section reads as follows:“3 (1) Subject to this act all cases of a civil nature involving a dispute as to: (a) The division of or the determination of boundaries to and including land held in common; (b) A claim to occupy or work land or; (c) Trespass to land, shall be heard and determined by a
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Tribunal established under section 4.” Before the Kosirai Land Disputes Tribunal, the Interested Party, Kiptoo Arap Kogo, claimed 1.2acres from Nandi/Ngecheck/64 which portion he alleged to have purchased from the Late Jemutai Tapkelelei Temuge. The Interested Party therefore sought to enforce a contract of sale of land. Such a claim could not lawfully be entertained by the tribunal given the jurisdiction circumscribed by the above provisions of the land Disputes Tribunals Act aforesaid. In purporting to entertain the interested Party’s claim, the Kosirai Land Disputes Tribunal clearly acted without and in excess of jurisdiction. In the premises the order of certiorari is available to the applicants as sought. An order of certiorari shall accordingly issue removing the decision of Kosirai Land Disputes Tribunal made on 16th November, 20106 and adopted by the Principal Magistrate, Kapsabet on 30th June, 2009, into this court and the same is hereby quashed. Each party shall bear its own costs of these proceedings. It is so ordered. DATED AND DELIVERED AT ELDORET THIS 5TH DAY OF JUNE, 2011 F. AZANGALALA JUDGE Read in the presence of:Ms. Chepkurui H/B for Mr. Barasa for the Applicant and Mr. Miyienda H/B for Ms. Kipseii for Interested Party. F. AZANGALALA JUDGE 5TH JUNE, 2012
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