Pelesia Atieno Onyango v Republic & Malaki Ndong'a Ogwayo [2016] KEHC 7159 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

ENVIRONMENT & LAND COURT

APPEAL   CASE NO.60   OF 2011

PELESIA ATIENO ONYANGO………………..……………………APPELLANT

VERSUS

REPUBLIC OF KENYA……………………………………...1ST RESPONDENT

MALAKI NDONG'A OGWAYO…………...………………2NND RESPONDENT

JUDGMENT

1. Pelesia Atieno Onyango, the Appellant, filed this appeal against the decision of the Nyanza Provincial Land Dispute Appeals Committee of 16th February 2011 raising  five grounds marked 1 to 5. The Appellant named theRepublicandMalaki Ndonga Ogwayo as the 1st and 2nd Respondents.  Grounds 1 to 3 deal with whether or not the Land Disputes Tribunal and Appeals Committee had jurisdiction under the Disputes Tribunal Act to determine the issue of ownership of registered land.  The three grounds will be taken as one ground for the purposes of this judgment.  The second and third grounds are ground 4 and 5 on the memorandum of appeal.

2. The 2nd Respondent filed a replying affidavit sworn on 28th February 2015 in which he states that the appeal should be dismissed with costs.

3. When the appeal came up for hearing on 19th October 2015 Counsel for the 1st Respondent conceded to the appeal.  The Appellant relied on the grounds on the memorandum of appeal and the annextures thereto. The 2nd Respondent indicated that he was relying on the replying affidavit  sworn on 28th February 2015.

4. That this being a second appeal, the court will only pronounce itself on matters of law raised  in the appeal which are summarized as below:

(a) Did the Tribunal and the Appeals Committee have jurisdiction to determine the issue of ownership of land parcel North Gem/Maliera/286 which is registered land?

(b) Were the Tribunal and the Appeals Committee properly constituted in accordance  with the law when they heard and decided on the ownership of land parcel North Gem/Maliera/286?  If not properly constituted, what is the legal effect on their   decision.

(c) Was the appeal before the Appeals Committee time barred or filed out of time?

5.  The court has carefully considered the grounds on this memorandum of appeal, the annextures thereto, the 2nd Respondent's affidavit  and come to the following consideration;

(a)  That under section 3(1) of the repealed Land Disputes  Tribunal Act under which the Land Disputes Tribunal and Provincial Land Disputes Appeals Committee drew   their jurisdiction had limited their power to disputes ''as to the division of, or the  determination of boundaries to land including land held in common, a claim to occupy or work land or trespass to land.''

The claim the Appellant had lodged with Siaya Land Disputes Tribunal and registered  as case number 10 of 2008 was for ownership of registered land parcel North Gem/Maliera/285. The Tribunal order of 9th October 2008 included revoking, cancelling of the Respondent's names from the register of the land and substituting  thereof the appellant's names.  The Appellant's claim and Tribunal's order divesting the Respondent of the title to the suit land and vesting it on the Appellant was   beyond the powers set out under Section 3(1) of the  said Act and the award was therefore ultra vives, null and void ab initial.  To the extent that the Appeal Committee decision of 16th February 2011 allowed  the Respondent's appeal, their  decision was therefore correct.

(b)   That the composition of the Tribunal is set out under section 4(3) of the said Act. It  has to consist of a Chairman and two or four elders bringing a total of either three or  five  in number.  The copy of the Tribunal proceedings attached to the memorandum   of appeal has the Charmian and three members making a total of four contrary to the provision of section 4(2) of the Act.  The tribunal was therefore not properly constituted and their decision was made by a panel that was not known in law.  In   relation to the Appeals Committee, Section 9(2) of the Act required a panel of three members.  The Appeals Committee proceedings attached to the memorandum of appeal was by a panel of three members and therefore constituted in accordance with the law.

(c)  That a party to a dispute before the Tribunal was required by Section 8(1) to file an   appeal with the Appeals Committee within 30 days of the decision.  The Tribunal decision is dated  9th October 2008.  The lower court proceedings in Siaya PMC Land Case No.102 of 2008 which are attached to the Memorandum of appeal indicates that the Tribunals award was filed with the court on 5th December 2008  and adopted by the court on 20th January 2009.  This court will take that date as the   one on which the Tribunal's award was brought to the attention of the parties. The running of the 30 days within which to file the appeal started on that date.  The appeal with the Appeals Committee was registered as case number 6 of 2009.  The  Appellant did not avail evidence to proof or support her claim that the appeal was   filed outside the 30 days window.

6.   That for reasons set out above the court find that the Land Disputes Tribunal had no jurisdiction to determine the dispute filed by the Appellant before it.  It had no jurisdiction to issue the orders divesting the title to the land from the Respondent and awarding it to the Appellant.  The Appeals Committee was therefore right to  allow the appeal filed by the Respondent but should have gone further to declare  that the Tribunal had exceeded its powers and its decision was null and void. The

Appeals Committee should also have pronounced itself on the composition of the   Tribunal and ruled that it  was not properly constituted and its decision was therefore null and void.  The court therefore allows the appeal as follows:

(a)  The Siaya Land disputes Tribunal was not properly constituted and acted beyond its powers and its award was null and void.

(b) That though the Provincial Land Disputes Appeals Committee decision to allow the appeal was correct, its order on ownership of the suit land was without jurisdiction.

(c) That the appeal is allowed with each party bearing their own costs.

SM. KIBUNJA

ENVIRONMENT & LAND – JUDGE

Dated and delivered this28th day of February 2016

In presence of;

APPELLENT PRESENT.

RESPONDENTS  2ND RESPONDENT PRESENT.

COUNSEL  M/S Aliongo for 1st Respondent.

SM. KIBUNJA

ENVIRONMENT & LAND – JUDGE

28/1/2016

28/1/2016

S.MKibunja J

Oyugi court clerk.

Appellant present

2nd respondent present

M/S Aliongofor 1st Respodent

Court:  Judgment delivered in open court in presence of Appellant, 2nd Respondent and M/S Aliongo for 1st Respondent.

SM. KIBUNJA

ENVIRONMENT & LAND – JUDGE

28/1/2016