Republic v Chairman Provincial Land Disputes Appeal Tribunal Western Province Ex-Parte Edward Omar Sitoki,George Simiyu Sitoki & Erastus Wanjala Wechuli [2013] KEHC 2503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC. APPLICATION  CASE NO. 33 OF 2011

IN THE MATTER OF AN APPLICATION BY EDWARD OMARI SITOKI AND GEORGE SIMIYU SITOKI FOR  LEAVE TO APPLY FOR ORDERS OF  JUDICIAL REVIEW

AND

IN THE MATTER OF THE REGISTERED LAND ACT CHAPTER  300 LAWS OF KENYA

AND

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

AND

IN THE MATTER OF THE WESTERN PROVINCIAL DISPUTE APPEALS TRIBUNAL AND BUNGOMA CHIEF MAGISTRATE'S  COURT LAND DISPUTES

CASE NO. 43 OF 2010

AND

IN THE MATTER OF  BOKOLI/MISIKHU/579

AND

IN THE MATTER OF THE CIVIL PROCEDURE  ACT & CIVIL PROCEDURE RULES 2010

AND IN THE MATTER OF THE LAW REFORM ACT CHAPTER  26 LAWS OF KENYA

BETWEEN

REPUBLIC............................................................................................... APPLICANTS

VERSUS

THE CHAIRMAN PROVINCIAL  LAND DISPUTES  APPEALS TRIBUNAL WESTERN PROVINCE.........RESPONDENT

EXPARTE

EDWARD OMAR . SITOK

GEORGE SIMIYU SITOKI....................................................................... APPLICANTS

VERSUS

ERASTUS WANJALA WECHULI............................................ INTERESTED PARTY

JUDGMENT

The exparte applicants have brought a Judicial Review application under  Order 53 Rule 3 of the Civil Procedure Rules and Section 8(2) & 10 of the Law Reform Act Cap 26 of  Laws of Kenya. The application is seeking orders of certiorari to move into this  court and  quash the decision of the Western  Provincial land  Disputes Tribunal  Appeals Committee adopted as judgment  on the  24th September 2010 in Bungoma Chief Magistrate's court Land case No. 43 of 2010.  They also prayed for costs of the suit.

This court notes from the annexed proceedings of the Appeals Tribunal that the 1st  exparte applicant, Edward Omari Sitoki who was listed  as appellant No. 2 sought to withdraw from the proceedings. These were his prayers before the Appeals Tribunal,

"Although I was listed as the 2nd appellant, I have decided to withdraw myself from the case for the following reasons

(a). I was not present when the parties signed their land sale agreements to be able to participate.

(b). The case  does not concern me and to support my evidence, I have already filed my withdrawal letter to this court.

(c). The request by the appellant  Edward Omari Sitoki was granted  after the parties accepted the  request."

During the hearing before Webuye district Land Disputes Tribunal, although  only George  Simiyu Sitoki was listed as the complainant.  Edward testified and  during  cross- examination by the interested party he alleged he was  giving evidence as a complainant.  The District Tribunal's finding also  referred to  George Simiyu as the only complainant.  Why have I gone into these details? I find as a fact that the 1st exparte applicant  Edward Omar Sitoki having not participated in the proceedings before the Appeals tribunal is not entitled to  the orders of Judicial review seeking to  challenge the decision  reached by the Appeals Tribunal.  He  had on his own volition  withdrew from the  said proceedings.  If the court were to find that he was a complainant in the proceedings before   the Webuye Land Disputes Tribunal hence his basis  for  challenging that decision, then his application for judicial review is obviously outside  the 6 months period.  The Webuye  District Land Disputes tribunal decision was reached earlier than 13th May 2010, which date the appeal was heard.  The application for leave to apply for orders of Judicial  review was  filed on 23rd March 2011. Between May 2010 and March 2011 is close to 11 months.  My finding in respect to the  prayers sought by the 1st exparte applicant is therefore without any  basis, an afterthought and is dismissed.

As regards the limb of prayers by the 2nd exparte applicant George Simiyu Sitoki, this court seeks to find if  Western Provincial Appeals Tribunal exceeded its mandate to warrant the application to be allowed.  The  Appeals Tribunal upheld the decision of the Webuye District Land Disputes Tribunal.  The district Tribunal after hearing the dispute made an award which stated  thus “The Tribunal court has ruled that  the objector Erastus Wanjala Wechuli to get his portion of land measuring 3. 2 acres from Bokoli/Misikhu/579”

From the reading of  the proceedings and   award, it means to execute the award title to  land Bokoli/Misikhu/579would be subdivided  to create title for the 3. 2 acres given to the Objector (Interested party). The Interested Party acquired this land by way of  sale therefore  a contract was  created between the 2nd exparte applicant and the interested party. The Tribunal is not given jurisdiction to deal with issues arising from contracts. In paragraph 3 of their finding, they refer to  an agreement and the  2nd exparte applicant signing  for receipts of payment of the last installment.

I have also considered the submissions of the rival parties.  Mohammed Ibrahim J (as he then  was) in the  case of Misc. Civ. Application  between R. Vs. chairman Keiyo Division Land disputes Tribunal exparte Tabyotin Kabon Ego Eldoret HCC NO. 43 of 2006 at page 4 found that the interested party's claim is one of  a beneficiary  to the estate of the deceased hence the  tribunal did not have  jurisdiction to adjudicate on it.  In the instant case, the interested  party's claim would lie in a claim for adverse possession; except in this case, it is the  exparte applicants who  commenced proceedings before the  Tribunal.  The upshot of my finding is the Tribunal  exceeded the mandate given to it under Section 3 (1) of the Act  when adjudicating  on a cause of action arising from a contract.

Consequently  I call into this court the decision  of the Western Provincial Land Disputes Appeals Tribunal  adopted as a judgment of this court on 24th September 2010 vide Bungoma CM land case  No. 43 of 2010 and  quash it.  The 2nd exparte applicant is the one who commenced the  proceedings before the Tribunal so I will not condemn the Interested party to pay him costs.  I make an order that   each party to bear  their own costs.

JUDGMENT DATED, SIGNED, READ AND DELIVERED in open court this    29th   day of August   2013.

A. OMOLLO

JUDGE.