Republic v Chairman Kanduyi Land Disputes Tribunal Interested party Elizabeth Nekesa Ndombi & Beatrice Nanjala Juma Exparte Simon Mikae Saisi [2013] KEHC 2508 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC.  CIVIL APPLICATION  CASE NO. 84 OF 2010

IN THE MATTER  OF THE LAW REFORM ACT  CAP 26 LAWS OF KENYA

AND

IN THE MATTER OF AN APPLICATION BY SIMON  MIKAE SAISI FOR  AN ORDER OF JUDICIAL REVIEW

AND

IN THE MATTER OF THE LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990

AND

IN THE MATTER  OF THE KANDUYI LAND DISPUTES TRIBUNAL  DISPUTES NO. 26 OF 2009

REPUBLIC.....................…................................................................. APPLICANT

VERSUS

THE CHAIRMAN KANDUYI LAND DISPUTES TRIBUNAL..........RESPONDENT

AND

ELIZABETH NEKESA NDOMBI …..............................1ST INTERESTED PARTY

BEATRICE NANJALA JUMA …....................................2ND INTERESTED PARTY

EXPARTE

SIMON MIKAE SAISI …............................................................................ APPLICANT

JUDGMENT

The  exparte applicant brought a notice of motion seeking  orders that;

(a). The honourable court be pleased  to  grant orders of certiorari to remove into the honourable court and  quash  the decision of Kanduyi Land Disputes Tribunal case No. 26 of 2009 read and adopted  as judgment of the court on 21. 5.2009 vide  Bungoma land case  No. 17 of 2010.

(b). Costs of the application be provided for.

The motion is based on grounds  on the face of it  and  on the affidavit of the exparte applicant.  The motion is opposed by the 1st interested party. She filed a  replying affidavit. The 2nd interested  party passed on before conclusion of  this matter and on 30th May 2013, the  claim as  against her was withdrawn by the exparte applicant. The gist of of the applicant's claim is set out at paragraph 8 of the supporting affidavit i.e the  Tribunal's decision meant  that the applicants title no E. Bukusu/S. Kanduyi/13676will be landlocked. It his case that the Tribunal  had no jurisdiction to adjudicate on matters relating to title and  access road to the said title. He annexed the proceedings of the  Tribunal to the said  affidavit.

The 1st interested party in her replying affidavit  contend the Tribunal had jurisdiction to entertain the matter before it.  The proceedings before  the  Tribunal did not touch on  title to land. The 1st Interested party also aver the land in question during the proceedings was E. Bukusu/S. Kanduyi/10540;while the land referred to in the notice of motion is L.R E.Bukusu/S.Kanduyi/13676which is different hence the supporting affidavit raises new issues that were not adjudicated before the Tribunal.

The exparte applicant and the 1st interested party filed their  respective written submissions.  The applicant in his submissions  claimed the Tribunal was  wrong in  entertaining a  matter that was time barred and res judicata as it had been adjudicated in Bungoma Land  Disputes Tribunal  case No. 7 of 2005.  Secondly, the 1st interested party did not have locus hence the claim before the tribunal was a nullity.  He introduced new land parcel numbers. He concludes by saying that  the award gave the 2nd interested party one acre of land from the applicants parcel  E. Bukusu/S/ Kanduyi/13676.  They have cited and annexed several case law to support the submissions. The proceedings in No 7 of 2005 were not annexed to the application although it is my considered opinion that Res Judicatadoes not apply to proceedings before tribunals. There was no submission on the issue of locus of the 1st interested party.

The 1st interested party  maintained the applicant is  referring to a different parcel of land than the one adjudicated upon by the  Tribunal.  She also submitted that the Tribunal had jurisdiction as the matter was a boundary dispute.  She urged the court to dismiss the motion with costs to her.

I wish to point out at the outset that in Judicial Review proceedings, the court does not touch  on the   merits of the case (see Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd Civ Appeal no 185 of 2001) but only  if the Tribunal exceeded its powers as granted to  it under Section 3 (1) of the Land Disputes Tribunal Act (repealed).  The decision sought to be  quashed  is reproduced  hereunder;

1.   The claimant has  a right of her cliams and the panel of elders unanimously award her the disputed piece of land measuring 12”      x 100” and the balance of  Kshs. 70,000/= to be paid by the objector as per the chief's ruling  stands.

2.   The panel of elders recommends  Mrs. Beatrice Nanjala Juma the purchaser of the disputed land measuring 12” x 100” to develop it     as the owner of the parcel.

3.   The objector should desist from  further indimidation taking advantage of the  claimants illiteracy to psychological molest and      the provincial administration is requested to observe her secutiry.

4.   The objectoer  to meet the costs of the case.

Enclosed document marked CL, OB and EX produced as evidences.

In the heading of the proceedings the parcel of land under dispute is L.R.  E. Bukusu/S. Kanduyi/10540.  According  to the applicant, this title is no longer in existence as it  was closed on subdivision. He had also submitted that if the award is executed, his parcel will be  landlocked. I deduce therefore that the  applicants worry is the 1st interested party sold a portion of land to the 2nd interested party which portion comprises part of the access road to his plot.  It cannot therefore  be true submission by  the applicant that the award was directing him to curve out  one acre of land to the 2nd interested party. It would eat up the access road.

I agree with the  1st interested party that the applicants title L.R. No. E. Bukusu/S. Kanduyi/13676 was not being adjudicated upon before the tribunal.  What appears to have been issue is  the boundary between  E. Bukusu/S. Kanduyi/13676 and a land portion measuring 12” by 100”. It is not clear from the decision of the tribunal on which title the portion 12" by 100" was to be created from. Although the Tribunal did not exceed its mandate in all the limbs of the award, for instance, the award  in paragraph 3 basically was for parties to  maintain peace and  cannot be stated to exceed jurisdiction.

There was no mention of the applicant's  title in the award as  adopted in the court. However from the annexed green card for L.R 10540, this title was closed on subdivision on 8th Nov 2002, therefore the proceedings before the tribunal were void for it arbitrated over land parcel number that had changed into new numbers and mutated.  Executing the award meant the register would be rectified to reflect the old no. of L.R 10540. This in my view was exceeding jurisdiction and necessitates  the calling of  the decision of the  Tribunal into this court for purposes of  quashing.

In reference to the  authorities cited, in Bungoma Misc.  Civil  No. 8 of 2007, the matter in issue related to a property where the proprietor is deceased.  In the Bungoma Misc. Civ. Case  No. 6 of 2007, the  Tribunal gave orders directly subdividing the exparte applicants land. In the instance case, although the award does not interfere with the applicants title directly, but it inteferes with register of the mother title.

The court of appeal decision in  Civil Appeal No. 259 of 2000, the decision sought to be quashed was based on  award that gave  land to the appellant on basis of trust which again is not applicable to the  present motion.  This case  law  relied  on by the exparte applicant is therefore distinguishable.

Consequently from the explanations given above, I find this application as  has merit and proceed to allow it. I order  that each party to bear  their own costs.

JUDGMENT DATED, SIGNED, READ AND DELIVEREDin open court this   17th  day of July   2013.

A. OMOLLO

JUDGE.