REPUBLIC V CHAIRMAN SIAYA D. L. D. TRIBUNAL & 4 OTHERS [2012] KEHC 1533 (KLR)

REPUBLIC OF KENYA

High Court at Kisumu

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IN THE MATTER OF THE REGISTERED LANDS ACT CAP 300 LAWS OF KENYA

AND

IN THE MATTER OF TEH LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990 SECTIONS 3 91) (4) (7) AND (8)

AND

IN THE MATTER OF THE SUCCESSION ACT CAP 160 LAWS OF KENYA

AND

IN THE MATTER OF TEH PARCEL OF LAND KNOWN AS SOUTH GEM/KAUDHA / 183

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

VERSUS

THE CHAIRMAN SIAYA D. L. D. TRIBUNAL …..............................1ST RESPONDNET

THE PRINCIPAL MAGISTRATE'S COURT SIAYA..........................2ND RESPONDNET

THE DITRSICT LAND REGISTRAR SIAYA …..................................3RD RESPONDENT

THE DISTRICT LAND SURVEYOR SIAYA …...................................4TH RESPONDENT

PAUL NYAGOL WAGANDA..............................................................5TH RESPONDNET

JUDGMENT

The applicants Notice of Motion dated 24th October 2011 prays for Orders of certiorari to quash the 1st and 2nd Respondents decision to award a portion of Land parcel number South Gem / Kaudha / 183 to the 5th Respondent. It further prays for Orders of prohibition so as to prohibit the 3, 4, and 5th respondent from enforcing the Order earlier issued. Finally it prays for the writ of mandamus to compel the 3rd and 4th respondent to restore the suit property to its original position. The application has been supported by the statements and the affidavit of William Odipo Nyagol.

The current registered owner of the suit property is Paul Odipo Nyagol. The 5th respondent filed his claim at Siaya Land Disputes Tribunal Case No. 91 of 2006 where on 10th December 2008 the said tribunal ordered as follows:-

(a)The suit land South Gem / Kaudha / 185 be resurveyed and sub – divided into two equal parts thus the upper part bordering the objectors home be registered in his names and the remaining portion to remain in the names of the objector Paulo Nyagol Othina.

(b)The land Registrar and District Surveyor to effect this Order as soon as possible.

(c)Rights of Appeal within 30 days

The said judgment was adopted as the Order of the Court on 9th December 2010.

The gist of the applicant application is that the tribunal did not have jurisdiction to entertain this claim as this was land which had been registered. He further argued that by the time the Judgment was being read and adopted Paulo Nyagol Othina the registered proprietor had passed on.

The State Counsel supported the application and basically enjoined herself with the arguments of Mr. Ragot Counsel for the applicant.

The 5th respondent did file a response vide his replying affidavit filed on 6th February 2012 and sworn the same day. He claimed that the suit land belonged to his grandfather Nyagol Okwe who gave it to his father Johannes Waganda Nyagol who passed the land to him and his brother Lucas Otieno Waganda.

I have read the pleadings herein and heard the rival oral arguments. It is trite law now that the repealed land Disputes Tribunal Act Chapter 303 A Laws of Kenya did not empower the tribunal to determine issues to do with title to land. By ordering the land to be divided into two the tribunal acted ultra vires.

It is further argued by the applicant and admitted that the later Paul Nyagol Othina died on 8th August 2008 before the judgment of the tribunal was delivered on 10th December 2008. It follows therefore that the tribunal although they may have heard the case during the lifetime of the deceased ought to have inquired whether there was any legal representative of the estate of the late Paul Nyagol Othina.

Further the lower court equally err by failing to inquire before adopting the orders of the tribunal. Without going into other merited points raised by Mr. Ragot this application ought to succeed. The same is allowed as prayed. The applicant's costs shall be shared however by all the respondents.

Dated, signed and delivered at Kisumu this 31st day of   October 2012.

H.K. CHEMITEI JUDGE

In the presence of:

Ragot for the applicant

Mwamu for Ochieng for the defendant

HKC/aao