James Karuku Kireru v Lucy Gathoni Kireru [2016] KEELC 892 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND  COURT OF KENYA

AT NYERI

ELC APPEAL NO. 117 OF 2014

JAMES KARUKU KIRERU…………….........……APPELLANT

VERSUS

LUCY GATHONI KIRERU………………………RESPONDENT

JUDGMENT

Introduction

1.  This appeal relates to an award of the Central Provincial  Land Disputes Appeals Committee (hereinafter “the  Appeals Committee”) made on 5th August, 2011 in claim   No. Muranga North 4/2008.

2.   The award appealed stated as follows:-

“AWARD”

This Provincial Tribunal has decided to uphold the   Mathioya Tribunal Award as follows:-

Lucy Gathoni Kireru to get her share of 1 ½ acres   from Loc 14/Kairo/2218.

We are appealing to court to issue the necessary orders….”

2.  Aggrieved by the aforementioned award/decision of Appeals Committee, the appellant (James Karuku Kireru) brought the current appeal on the grounds that the Appeals Committee failed to appreciate the powers given  to it under Section 3(1) of the repealed Land Disputes  Tribunal Act, No.18 of 1990 (hereinafter “the Act”) and   that the Appeals Committee contravened the provisions of Section 8(7) of the Act by failing to give reasons for its   decision.

3.    Terming the decision of the Appeals Committee bad in  law, the appellant urges this court to set it aside and allow    the appeal.

4.    The appeal was disposed of by way of written   submissions.

5.   In the submissions filed on behalf of the Appellant, it is pointed out that the dispute preferred at District Tribunal and at the Appeals Committee touched on a registered   parcel of land to wit, Loc.14/Kairo/2218 and submitted that the dispute was outside the jurisdiction of the Tribunal established under the Act.

6.   The Appeals Committee is faulted for having failed to give its views concerning the dispute and instead adopting the  decision of the District Tribunal and for having failed to  give the dispute preferred to it a number.

7.   Maintaining that the Tribunal did not have jurisdiction to hear and determine the dispute, the appellant urges the         court to allow the appeal as prayed.

8.    On behalf of the respondent, reference is made to   Section 3(1)(b) of the Act and the case of Susan        Nyambura Wahome & 4 others v. Central ProvinceLand Disputes Appeals’ Committee Nyeri Civil Appeal No. 195 of 2009 (unreported) and submitted that the   Appeals Committee had jurisdiction to arbitrate the    dispute because it was on a claim to occupy and or work  land.

9.      In the case of Susan Nyambura Wahome (supra),   the    Court of Appeal stated:-

“…the Land Disputes Tribunal was a creature of   statute. The Land disputes Tribunal Act No. 18 of   1990 (now repealed) Section 3(1) provides the   matters that form the jurisdiction of the elders’    tribunal are issues of:-

a)      “The division of, or the determination of boundaries to land including land held in  common;

b)      A claim to occupy or work land; or

c) Trespass to land,”

Our own understanding of the dispute that was taken   to the tribunal for determination was the issue of    whether the suit property was land held in common,   or a claim to occupy land. We say this because, it is   uncontested that when Susan, the mother of the     appellants and 4th respondent returned to live with   her father in the early 1960’s, she lived on the suit   property with all her children. When her father died,   he left her and her children living on this land, thus,  they were occupying the land and working on it by  the time the respondent was registered as proprietor.

The problem the learned judge identified was the  tribunal overstepped their jurisdiction when they ordered a sub-division of the suit premises and  transfer thereto to the appellants…The learned   judge’s intention is clear, it was to nullify an order  that was made in excess of jurisdiction as she       posited in part of her ruling as follows:-

“The fact that judgment has been entered in terms of    the award cannot preclude this court from granting  an order of prohibition to stop execution of the judgment whose very source was a nullity.”

In our considered view, this observation is not   entirely correct in law because the order of        prohibition that was issued did not solve the problem    that was facing the court and the parties. Firstly, the tribunal was a creature of the law and both parties submitted themselves to its jurisdiction and it is the  4th respondent who appealed before the Provincial   Land Disputes Tribunal. In other words he could have applied to quash the decision of the Land Disputes  Tribunal instead of appealing. The issue we have to   address is the fact that the tribunal is said to have   exceeded its jurisdiction and went further to order sub-division of land. After considering the evidence    and establishing that all parties were occupying the    suit land the tribunal ordered the sub-division of the     land among the appellants and the 4th respondent. Perhaps if the tribunal merely declared that the  appellants were in occupation of the suit land and stated the portions they occupied without making a definitive order of subdivision and transfer and  leaving the parties to seek the orders of transfer in   the High Court that would have been within the  acceptable limits of the Act (in essence the Court ofAppeal agreed with the submissions that the Courthad no power to order transfer of the land to theparties to the dispute).Emphasis supplied.

The court further stated:-

“Even if we were to consider this dispute within the  principles of the overriding objectives in the  administration of justice which can be done because courts have shifted and they no longer worship at the   altar of technicalities, we are afraid this is not one of them. This is a matter that touches on a principle of  law regarding the effects of the remedies in judicial review and also touches on the fundamental rights   over rights to property by members of the same   family who have occupied land through their mother  in all lifetime and now suit land is registered in the name of one of them, the 4th respondent. It is the 4th  respondent who pursued the wrong remedy after he     lost a case for what would have been an appropriate remedy. Was he entitled to litigate in installments and  after he lost the case for orders of certiorari, file another suit seeking the orders of prohibition?

We think not….as matters stand, the decree of the    Chief Magistrate, still stands…”

10.    It is further submitted that the Appeals Tribunal had no power to determine whether or not the District Tribunal  had power to hear and determine the dispute preferred before it and opined that if aggrieved by the award of the Tribunal, the appellant ought to have filed a judicial review application to quash the earlier decision of the   tribunal.

11.    Concerning the contention that the Appeals Committee   failed to give the appeal a number as by law required, it is submitted that the appeals Committee did give the  Appeal a number to wit, No. Muranga North 4/2008. Besides, it is submitted that the Appeals Committee knew the matter it was seized off.

12.    After considering the pleadings and the submissions files, I find the issues for determination to be;

1)      Whether the Appeals Committee had power to hear  and determine the dispute preferred before it?

2)      Whether the appeal Committee abdicated its duties  under the statute?

3)      If the answer to (2) above is in the affirmative, whether the abdication of the duties rendered the          appeal fatally defective?

4)      Whether the appellant has made up a case for being   granted the orders sought?

5)      What orders should the court make?

13.    Concerning the 1st issue, I begin by pointing out that the dispute preferred to the District Tribunal and which led to   the appeal to the Appeals Committee and subsequently to this Court was a demand by the respondent, (appellant’s sister) of a share of her father’s land to wit, Loc.14/Kairo/2218 which was at the material time registered in the name of the appellant.

14.    The respondent contended that she had a right to share  the land because she was unmarried and had been left in  occupation of the suit land by her parents. The tribunal  heard that following  the passing on of the respondent’s  parents, the suit property had been subdivided and shared between the appellant and herself as per the    wishes of her parents. The respondent blames the   children of the appellant for removing the boundaries to the sub-divisions to the suit land.

15.    In his statement of defence before the District Tribunal, the appellant admitted that the respondent and himself    lived in the suit property but denied her contention that   she was entitled to a share thereof. He however,acknowledged that the respondent was entitled to a share of the land they had, but contended that she should  claim her share from her 4 siblings and not him alone.

16.    Upon evaluating the evidence adduced before it the   District Tribunal, inter alia, held:-

“James Kauruku Kireru (the appellant herein) ID3466756 was a trustee to the land parcel   no.Loc14/Kairo/2218 of about 4. 6 acres.

Award

According to evidence adduced from both parties,  witnesses and document produced, the tribunal  established that the plaintiff, Lucy Gathoni Kireru  ID/3392808 was entitled to inherit 1. 5 acres from her   father’s land parcel No.Loc.14/Kairo/2218 held by her  brother, James Karuku Kareru ID/3466756 as a trustee of family land. The defendant, James Karuku   Kireru ID/3466756 should therefore unconditionally subdivide and transfer 1. 5 acres to the plaintiff, Lucy    Gathoni Kireru ID/3392808 and District Land Officer  and District Surveyor to facilitate the process. Should  any party prove difficult, the Court executive Officer  should sign documents and facilitate the sub- division and transfer accordingly.”

17.    Aggrieved by that determination,the appellant preferred an Appeal to the Appeals Committee where he admitted  that the suit property was family land (he had inherited the same from his father). He denied the respondent’s contention that he had been given aportion of the suit   property by his father and contended that his father’s   land was shared among his father’s sons.

18.    He reiterated his contention before the lower Tribunal that   the respondent should get land from all the beneficiaries  of his father’s land. In this regard, he stated that he had  offered the respondent ½ an acre.

19     The respondent maintained that she was given 1 ½ acre   from the suit property by her late mother. Explaining that    she was in occupation of ½ acre she urged the Appeals           Committee to officially give her 1 ½ acres.

20.    Upon considering the appeal preferred before it, the  Appeals Committee rendered itself as follows:-

“Award

This provincial tribunal has decided to uphold the  mathioya tribunal award as follows:-

Lucy Gathoni Kireru to get her share of 1 ½ acres  from Loc.Kairo/2218. We are appealing to the court to          issue the necessary orders. The claim was heard and determined this 21st day of July, 2011. Each party to    meet its costs.

Any aggrieved party may appeal after 60 days.”

21.    It is that determination that prompted the filing of the      current appeal.

22.    In the case of Republic v. Chairman, Lurambi LandDispute Tribunal & 2 others (2006) eKLR it was held:-

“The powers vested in the tribunal under section 3(1)   of Act 18 of 1990 do not include power to determine   issues of or affecting title to land. The tribunal clearly   acted beyond the purview of its jurisdiction and its decision was clearly ultra vires its powers under section 3(1) of the Land Disputes Tribunal Act  No.18         of 1990.

The ex parte  Applicant was also not heard or given  the right to be heard…I am satisfied that the decision       of the Tribunal was a nullity not least because it was  ultra vires its powers under section 3 (1) of Act 18 of    1990…”

Analysis and determination

23.    It is not in dispute that the subject matter before the  District Tribunal and the Appeals Tribunal was registered   land. It is also not in dispute that both the District and the Appeals Tribunal lacked jurisdiction to hear and    determine the dispute preferred before them.

24.    On the authority of Samuel Kamau Macharia & Anotherv. Kenya Commercial Bank & 2 others (2012) eKLR a court’s Jurisdiction flows from either the Constitution or  Legislation or both. A court of law (Tribunal) can only   exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction     exceeding that which is conferred upon it by law. By  arbitrating over a matter they had no power to arbitrate, the Tribunals acted ultra vires. That being the case their      decision was a nullity in law. In this regard see the case   of Republic v. Chairman, Lurambi Land DisputeTribunal & 2 others (2006) eKLR (supra). Also see the  case of Mateo Githua Ngurukie vs. Hon. AttorneyGeneral and 5 Others; Nyeri High Court Civil Suit No.206 of 1999where  Ombayo J.,  stated:-

“Over and again the Court of Appeal and High Court have held that the Land Dispute Tribunal lacks  jurisdiction over registered land especially where the matter at hand touches on title of land. (See Wachira   wambugu Case (supra) and Julius Mburu Mbuthia  case, supra). It follows therefore that the instant  issues are not Res judicata due to the fact that they  were deliberated upon and determined by an   incompetent tribunal that lacked jurisdiction over the same..

In the case of Vincent Kipsongok Rotich v. Orphah Jelangat Ngelechei (2014)e KLR supra, the learned judge Munyao J., declined to declare the suit therein res judicata despite the existing decision/order that  had been made by the LDT and adopted by the Hon. Magistrates Court.”

25.    Having found the proceedings preferred at the defunct  land disputes tribunal in respect of this matter to have    been a nullity in law, I declare them as such and direct that the parties revert to the status which obtained before  the impugned proceedings were taken.

26.    Since this is a family dispute I order that each party bears  its costs.

Dated, signed and delivered at Nyeri this 17th day of May, 2016.

L N  WAITHAKA

JUDGE.

In the presence of:

Mr. Mindo for the appellant

C.N. King'ori h/b for Theuri Mwangi for respondent

Court assistant - Lydia