CHRISTOPHER KIURA v MARY WAWIRA MURIITHI [2011] KEHC 987 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CIVIL APPEAL NO. 51 OF 2010

(Being an Appeal from the Award of the Resident Magistrate E.K. NYUTU in Award Case No. 16 of 2009 on 2/6/2010 at Embu Chief Magistrate’s Court)

CHRISTOPHER KIURA ……….……………............................…….……APPELLANT

VERSUS

MARY WAWIRA MURIITHI……………..........................………….RESPONDENT

J U D G M E N T

This matter first came up at the Land Disputes Tribunal as No.134/07 before a Tribunal in Embu which is not stated. This was in respect to land No. L.R. NGANDORI/KIRIGI/4730.

The panel of elders heard the matter and decided that the land registered in the name of Christopher Kiura be divided into two portions with Mary Wawira Muriithi getting ½ acre.

The matter next came up as Embu C.M’s Court Award No.16/09 for adoption of the award. The award was adopted as judgment of the court on 2/6/2010. The Appellant being dissatisfied with the judgment filed this appeal citing 9 grounds viz:

1. That the learned Magistrate erred in law and fact when she proceeded to adopt the Award herein while she had declined to adopt because the Tribunal had exceeded its jurisdiction.

2. That the Magistrate in doing what is grounded (1) sat on her own Appeal.

3. That the learned Magistrate gave 2 contradicting orders dated 22/4/2009 & 2/6/2010.

The rest of the grounds are just repetitions of what I have highlighted above.

The record shows that when the Award was brought for reading and adoption before the Resident Magistrate on 22/4/2009 this is what she said;

“Award of Tribunal in case No.134/07 read in open court but  the court has taken notice that the Tribunal has exceeded its  jurisdiction. This court undertakes to adopt the same as  Judgment of the court and parties advised to seek appropriate    remedy before the court”.

And on 2/6/2010, the Resident magistrate confirmed the Award.

This is part of what the Appellant is complaining about. What the learned Magistrate on 22/4/2010 was good enough. She had her reservations about the Award from the Tribunal but she adopted it as a Judgment of the court. I think the Appellant wanted her to dismiss it going by her comments but she did not. The proceedings of 2/6/2010 were uncalled for.

The Appellant is the registered owner of land parcel NGANDORI/KIRIGI/4730. What the Tribunal did would result in cancellation of his title for two new titles. The Land Tribunal has not been clothed with jurisdiction to do that by the Land Disputes Act No.18/90. It is now settled that the Land Disputes Tribunals do not have jurisdiction to deal with issues of title to land. In the case of WAMWEA –VS- CATHOLIC DIOCESE OF MURANGA REGISTRED TRUSTEES [2003] KLR 389 the Court  of Appeal held that;

“Tribunals and Land Disputes Appeals Committees do not have jurisdiction to hear disputes over title to land”.

It is therefore clear that the Tribunal did not have the requisite jurisdiction to deal and give the Orders it gave. And for that reason I find merit in the Appellant’s Appeal which I allow. I quash the judgments by the Resident Magistrate entered on 22/4/2010 & 2/6/2010. I also quash the award of the Tribunal for being null and void abinitio. All other consequential orders are set aside.

There shall be an order that the Appellant remains the registered owner of the land L.R. NGANDORI/KIRIGI/4730 unless the title is reversed by a court with competent jurisdiction.

Each party to bear his/her own costs.

DATED, SIGNED AND DELIVERED AT EMBU THIS 14TH DAY OF DECEMBER 2011

H.I. ONG’UDI

J U D G E