Republic v District Land Disputes Tribunal Mukurweini, Chief Magistrate Nyeri & Wanjohi Kagwi Thairu ex parte Esther Kirigo Wanjohi [2017] KEELC 3325 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYERI

ELC JR NO. 2 OF 2014

IN THE MATTER OF LAND DISPUTES TRIBUNAL MUKURWEINI AWARD NO. 2 OF 2011

IN THE MATTER OF

THE CHIEF MAGISTRATE’S COURT AT NYERI

AWARD NO. 20 OF 2011

AND

IN THE MATTER OF LAND REFERENCE

NO. GIKONDI/THIMU/624

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

-VERSUS-

DISTRICT LAND DISPUTES TRIBUNAL MUKURWEINI ..........1ST DEFENDANT

THE CHIEF MAGISTRATE NYERI ............................................... 2ND DEFENDANT

WANJOHI KAGWI THAIRU ...........................................................3RD DEFENDANT

ESTHER KIRIGO WANJOHI .................................................EX PARTE/APPLICANT

RULING

1. Pursuant to leave granted to the ex parte applicant on 18th May, 2011 to apply for certiorari and prohibition, theex parte applicant, Esther Kiringo Wanjohi, filed the  notice of motion dated 2nd June, 2011 praying that she be granted the said orders against the defendants herein.

2 The motion is premised on the grounds that the Land Dispute Tribunal acted in excess of its jurisdiction by entertaining the proceedings preferred because of the  following reasons:

(i) The proceedings related to the estate of a deceased person;

(ii) The estate had not been administered as by law  required;

(iii) The Tribunal  failed to make reference to the land in question;

(iv) The Tribunal lacked jurisdiction to entertain and adjudicate a dispute based on title to land.

3. It is pointed out that the award is yet to be adopted as a  judgment of the court.

4. Terming the proceedings before the Land Dispute Tribunal   a nullity, the ex parte applicant urges the court to allow the application as prayed.

5. In the submissions filed in support of the application, it is reiterated that the proceedings before the Tribunal were a nullity and added that the applicant had no capacity to be sued on behalf of the estate of her husband.

6. The  application  is  opposed  on  the  grounds  that  it  is misconceived, incompetent, untenable and fatally defective.

Analysis and determination

7. From  the proceedings of the Tribunal, it is clear that the dispute before the Tribunal related to the estate of a dead person (Wanjohi s/o Ndauu). That fact is borne out in the findings of the Tribunal which were as follows:-

“i.The defendant  (Wanjohi S/O Ndauu) is deceasedand Esther Kiringo (His wife) is the one who appeared before the court because she is the direct (1st) beneficiary.

ii. The matter of access road did not arise during the life time of the defendant;

iii. Although the access road will help the complainant it wil also greatly help the public to access the dispensary;

iv. The chief summoned both parties at the dispensary they built but they did not reach an agreement;

v. The chief decided that he (chief) and the both parties to go to the Land Registrar but the defendant never turned up.

vi. Through the registrar, the chief and the plaintiff acquired a map and the map indicated that there was an access road.

vii. The map was produced before this court.

AWARD

Based on the above findings, this court requests the Land Registrar to visit the site and determine the access road.

Each party is to meet its own cost of this suit/case.”

8. It is also noteworthy that the Tribunal did not describe theparcel of land in respect of which the award was made.

9. As the proceedings herein related to the estate of a deceased person and there being no evidence that the exparte applicant was the administrator or legal  representative of the deceased, I find and hold that the   proceedings were irregular and unlawful as they offended the provisions of Section 45 of the Law of Succession Act, Cap 160 Laws of Kenya. In this regard see the said provisions of the law which provides as follows:

“45 (1). Except so far as expressly authorized by this Act or by other written law, or by a grant of representation under this Act, no person shall, for any purpose take possession or dispose of, or otherwise   intermeddle with any estate of a deceased person.

2). Any person who contravenes the provisions of this section shall-

a). be guilty of an offence....”

10. In the instant case, the Tribunal proceeded against the  estate of the ex parte applicant deceased husband when the estate was legally speaking not a party to the suit. By so doing, the Tribunal denied the estate an opportunity to be heard in the case urged against it, thus breaching the principle of natural justice which requires that before a decision that is likely to negatively impact on a person is made, the person to be affected by the decision be given an opportunity to defend himself.

11.   It is trite law that an order of certiorariwill issue where the court is satisfied that the impugned decision was made without or in excess of jurisdiction, or where the rules of natural justice have not been complied with. See KenyaNational Examination Council V. Republic Ex parteGeoffrey Gathenji Njoroge and others, Civil Appeal No. 266 of 1996.

12. Having determined that the decision of the Tribunal was irregular and unlawful, I find and hold that the ex parteapplicant has made up a case for being granted the orders sought. I consequently find the application herein to be merited and allow it as prayed.

Dated, signed and delivered in open court at Nyeri this 22nd day of March, 2017.

L N WAITHAKA

JUDGE

In the presence of:

Mr. Kiminda h/b for Mr. Kiboi for the applicant

N/A for the respondent and interested party

Court clerk - Esther