Ombiro Ong'ang'a v Nyatome Nyaramba [2004] KEHC 729 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL 243 OF 2003

OMBIRO ONG’ANG’A ………………...………………………………. APPELLANT

VERSUS

NYATOME NYARAMBA …………………………………………… RESPONDENT

JUDGMENT

This is an appeal from the decision of Resident Magistrate Keroka in RM Civil Misc. Appl. No.16 of 2003.

The Respondent had referred a dispute between him and the appellant to Rigoma Land Dispute Tribunal over land No.EAST KITUTU/MWAMANGERA/92.

The Tribunal case number is not indicated but apparently the dispute was heard on 17/2/03 in absence of the appellant. The respondent’s complaint was that he sold 1 acre to the appellant which was a portion of land No. East Kitutu/Mwamangera/65 in 1962. He showed him the portion though he never transferred it to him. Later he learnt that appellant was registered as owner of Plot No.92 which was 1. 2 ha. and not 1 acre. The board after listening to the respondent found in his favour and directed the Land Registrar to recall title No.Mwamangera/92 and cause the Appellant to be registered as owner of 1 acre and not 1. 2 Ha. In essence they directed him to rectify the register.

The land dispute Tribunal award was filed with Resident Magistrate court Keroka. Appellant applied to have the award set aside on the ground that the Tribunal had no jurisdiction and matter was res judicata.

When parties appeared before the learned Magistrate on 23/10/03 counsel for Respondent asked court to adopt the award as its judgment.

Counsel for appellant objected first on the ground that there was no formal application and that their application was still on record. The court however overruled the objection and adopted the award as court’s judgment. Nothing was said about the appellant’s application to set it aside.

On the hearing day the Respondent and counsel though served did not appear in court. Hearing proceeded ex parte. Though there were 8 grounds of appeal in the memorandum. Counsel concentrated on the ground that the Tribunal lacked jurisdiction to hear the dispute. It was submitted that the dispute was about ownership of land and not trespass. Secondly, it was said, the same dispute was subject of Kisii HCCC.NO.398 of 1996 between the same parties.

I have considered the appeal. I agree with Mr. Momanyi that Land Dispute Tribunal had no jurisdiction to hear and determine the dispute. The issue was that of ownership. The land was already registered under The Registered Land Act. Tribunals have no jurisdiction to determine the issue of ownership. They cannot order for rectification of the Register. Only the High Court which can do that.

Secondly, the matter had been arbitrated in KISII HCCC.NO.398 OF 1996. The appellant was the plaintiff and the Respondent the defendant. Appellant was praying for the Respondent to be injuncted from trespassing onto the said land or interfering with the appellant’s occupation.

The Respondent filed a defence and a counter claim seeking court to declare that the appellant was entitled to only one acre and that the register be rectified. On 24th Jan. 2001 the Court struck out the defence and entered judgment for the plaintiff as prayed. Apparently the respondent filed a Notice of Appeal to Court of appeal on 31/1/2001 but it seems no appeal was filed. Instead, two years later in 2003 he took the matter to the Land Tribunal. He never informed the Tribunal that the dispute had already been arbitrated upon and judgment entered in favour of the appellant. The Tribunal clearly lacked jurisdiction to entertain the dispute which had already been resolved by a competent court. The magistrate therefore should have listened to the appellant’s application and set aside the award. He clearly erred to enter the award as Judgment of the court.

In the circumstances I find the appeal well merited and the same allowed. The ruling by the Resident Magistrate Keroka and the decision by the Land Tribunal are hereby set aside.

Costs to the appellant.

Dated this 19th November 2004.

KABURU BAUNI

JUDGE

19/11/04

Mr. Momanyi for Appellant.