Republic v Chairman Kimilili L.D Tribunal Ex-Parte Shem Nalianya Sibitali Interested Party Wensilous Malaba Siakora [2013] KEHC 2471 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC. APPLICATION CASE  NO. 290 OF 2005

IN THE MATTER  OF AN APPLICATION BY SHEM NALIANYA SIBITALI

FOR JUDICIAL REVIEW ORDERS OF CERTIORARI

AND

IN THE OF THE DECISION OF THE LAND DISPUTES TRIBUNAL

ACT NO. 18 OF 1990 IN THE KIMILILI LDT  NO. 10 OF 2004

AND KIMILILI RESIDENT MAGISTRATE'S  COURT LAND CASE NO. 38 OF 2005 MADE ON 13/9/2005

BETWEEN

REPUBLIC........................................................................... APPLICANT

AND

THE CHAIRMAN KIMILILI L.D TRIBUNAL............................................RESPONDENT

EXPARTE

SHEM NALIANYA SIBITALI.............................EX-PARTE APPLICANT

VERSUS

WENSILOUS MALABA SIAKORA  .....................INTERESTED PARTY

JUDGMENT

[A]. By this Judicial Review application, the exparte  applicants beingunhappy with the decision of Kimilili land Disputes Tribunal seeks for orders;

That the proceedings, decision and award of Kimilili Land Disputes Tribunal in claim No. Kimilili Land Disputes Tribunal/10/2004 read as judgment  of the court on 13th September  2005 vide Kimilili  RMC land case No. 28 of 2005 be removed into the honourable court and  quashed.

The costs of this application  be provided for.

[B]. The Tribunal after hearing the evidence of the parties read this award;

“In view of the above observations this Tribunal  rules thatKimilili/Kimilili/1268 should be registered in the name ofWensilous Malaba erasing   the name of Shem Nalianya from  the register.

The Land Registrar to  ammend  the  register of  Kimilili/Kimilili/1268  to  read 9m by 31 m which is half  plot in the name of Samuel W. Wamalwa in order to liaison with the ground measurements”

The exparte applicant submits  the Land Disputes Tribunal had no jurisdiction to adjudicate on land dispute touching on title.  He also stated on the grounds  that the interested party's claim is barred by Limitation of Actions Act.

[C]. The interested party opposed the application.  He filed a replying affidavit.  In it he averred  that the exparte applicant owned land title       Kimilili/Kimilili/1266 in which  he has no claim.  He urged the court to order  title deed for  Kimilili/Kimilili/1267 to  read his name and a new  acreage of 0. 027 ha.

[D]. The exparte applicant annexed to his  supporting affidavit a  copy of  title deed for L.R.  Kimilili/Kimilili/1267  in his names (Sem Nalianya Sibitali) issued on 31st July 2003. The dispute before the Tribunal was lodged in 2004.  From the proceedings, the dispute  commenced on 2nd November 2004 and award reached on 30th November 2004. It  was  read as an order of the court on  13th September 2005.   It  therefore  follows that   the  exparte applicant was the registered owner of the suit parcel at the time of  hearing of the dispute  before  Kimilili Land Disputes Tribunal.

[E]. The Land Disputes Tribunal derived its jurisdiction from the Section 3(1) of the Land Disputes Tribunal Act (repealed) under the provisions  of   this section, they are not given powers to make awards  that result in alteration of the register or cancellation of title. By the  reaching of the award they  ordered for both the cancellation of title in ordering  rectification of the register to have the name of    Wenslous Malaba replace Shem Nalianya   from the register.  They also ordered rectification of register by  changing the  size of Kimilili/Kimilili/1268 to read 9m by 31m without any the report of the  Government Surveyor. The power to  cancel title  or rectify the register   vests in the  High Court only.  The Tribunal thus exceeded their  mandate by virtue of their decision/award. In any event, the Interested Parties claim was based on contract of sale of land which the Tribunal had no  capacity to enforce.

[F]. The other mistake the Tribunal did  was to introduce  land parcel  Kimilili/Kimilili/1268 in their award instead of  Kimilili/Kimilili/1267 which was the subject of the dispute.  However even if this was a typographical error, they would still have exceeded their mandate because the correction of the numbers would not  change the effect of their award/decision.

[G]. Consequently I allow the application, I call into this court the decision of  Kimilili Land Disputes Tribunal  Land case No.10 of 2004 read as  the judgment of the court in  Kimilili RMC land case No. 38 of 2005 and set  it  aside/quashed. I order that  each party shall bear their own costs.

JUDGMENTDATED, DELIVERED AND SIGNED In open court this  29th day of August  2013.

A. OMOLLO

JUDGE