REPUBLIC v EKERENYO LAND DISPUTES TRIBUNAL & 2 others Exc-parte JAMES NCHOBERA GESAMI [2010] KEHC 3972 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

OF KISII

Miscellaneous Civil Application 80 of 2008

IN THE MATTER OF AN APPLICATION BY JAMES NCHOBERA GESAMI FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (CERTIORARI & PROHIBITION)

AND

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

IN THE MATTER OF L.R.NORTH MUGIRANGO/BOISANGA/2321

KISII MISC.APPLICATION NO. 106 OF 2008

AND

REPUBLIC……………………………………………..APPLICANT

AND

THE EKERENYO LAND DISPUTES TRIBUNAL…1 ST RESPONDENT

CHIEF MAGISTRATE’S COURT……………………2ND RESPONDNET

ATTORNEY GENERAL………………………………….3RD RESPONDENT

TUMBO GESAMI GIDION CHANGAMWE OCHWAN’I…………INTERESTED PARTIES

EXPARTE……………………………………JAMES NCHOBERA GESAMI RULING

The interested parties herein went to Ekerenyo Land Disputes Tribunal to complain that in 1986 they had bought the exparteapplicant’s land parcel no. LR NM/Boisanga/2321 in 1986 to share equally and eventually moved and occupied the same but that theexparte applicant had refused to transfer the same to them. The Tribunal agreed with them and made decision ordering that the exparteapplicant transfers the land to them. The exparteapplicant was aggrieved by the award, which the Chief Magistrate’s Court adopted as judgment of the court, and came to this court and invoked its judicial review powers underOrder 53rule 3 of the Civil Procedure Rules. He was granted leave subsequent to which he filed this motion. An order of Certiorari is being sought to remove into this court and quash the proceedings and decision of the Tribunal (1st respondent) and also the decision of the subordinate court (2nd respondent) which adopted the award. The application was served and elicited response from only the interested parties. Mr. Ondari represented the exparte applicant and Mr. Bwonwonga was for the interested parties.

I have considered the papers filed by each side and the respective submissions. The submission by Mr. Ondari for the exparte applicant that the Tribunal did not have jurisdiction to entertain or determine this dispute is legally sound. Section 3(1)of the Land Disputes Tribunal Act (no.18 of 1990)empowers the Tribunal to handle all cases of civil nature involving the decision of, or the determination of boundaries to land, including land held in common; a claim to occupy or work land; and trespass to land. It does not have jurisdiction to hear or determine disputes relating to title to land.(SeeJotham Amunavi .V. The Chairman Sabatia Division Land Disputes Tribunal And Another, Civil Appeal no. 256 of 2002 at Kisumu).The award handed down by the Tribunal herein, and adopted by the court, has to be implemented. When that happens the exparteapplicant land will not only be taken away but   will also be subdivided into two for the portions to go to the interested parties. Theexparteapplicant will have his title to the land lost in the process. The Tribunal acted well outside the powers the Act above has donated to it. The proceedings and the award were a nullity. The same for the adoption and resultant decree of the subordinate court.

The exparteapplicant has established his case, and the court hereby removes to it the proceedings and award of the Tribunal and the order and decree by the subordinate court and quashes them by order of Certiorari. Costs will be paid by the interested parties.

Dated, signed and delivered at Kisii this 20th  Day of January, 2009. A.O.MUCHELULE

JUDGE

20/1/2010

Before A.O.Muchelule-J

Court clerk-Bibu

Mr. Ombicha for Mr. Ondari-present

COURT: Ruling in open court

A.O.MUCHELULE

JUDGE

20/1/2010