REPUBLIC v KURIA LAND DISPUTES TRIBUNAL, RESIDENT MAGISTRATE’S COURT AT KEHANCHA & JAMES MWITA [2010] KEHC 2282 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII Miscellaneous Civil Application 25 of 2008 REPUBLIC.........................................................................................................APPLICANT

VERSUS

KURIA LAND DISPUTES TRIBUNAL..................................................1ST RESPONDENT THE RESIDENT MAGISTRATE’S COURT AT KEHANCHA..............2ND RESPONDENT

AND

JAMES MWITA................................................................................INTERESTED PARTY

RULING

The ex-parte applicant filed an application dated 12th October 2007 seeking an order of certiorari to remove into this court and quash the proceedings and the decision delivered by the 1st respondent on 25th August 2007 in Kuria Land Disputes Tribunal Case No. 14 of 2007. He also sought a similar order to quash the decision of the 2nd respondent which adopted the decision of the 1st respondent.

The application was made on the grounds,inter alia, that:

·The 1st respondent acted without jurisdiction as granted by the provisions of section 3 (1)of the Land Disputes Tribunals Act No. 18 of 1990.

·The 1st respondent wrongfully entered judgment knowing that the dispute involved title obtained as a first registration.

The ex-parte applicant swore an affidavit in support of the application. She is the legal representative of the estate ofMasike Gorio Marinyo,hereinafter referred to as“the deceased”who died in 1997. The deceased and Moseti Charua Gisiwawa were registered as the proprietors ofL.R. No. Bukira/Bwisaboka/36, measuring 29 hectares, hereinafter referred to as“the suit property.”The two proprietors owned the suit property in common. Charua Moseti Gisiwawa is also deceased.

On 6th June 2007 the interested party, who is a grandson of Charua Moseti Gisiwawa, filed a suit before the 1st respondent claiming that his grandfather was the owner of the suit land. The tribunal proceeded to hear the claim and decided in favour of the interested party notwithstanding that the registered proprietors of the suit property were long dead. The tribunals decided that the ex-parte applicant be given 12 hectares of the suit property while the interested party and his family were to get 17 hectares. The said award was subsequently adopted by the 2nd respondent.

The interested party filed a replying affidavit and deposed that the proceedings before the 1st respondent were conducted in the presence of both himself as well as the ex-parte applicant. The decision of the 1st respondent was thereafter adopted by the 2nd respondent. He further stated that the application was bad in law because the orders sought therein are at variance with leave that was granted to commence the proceedings. He also defended the award by the 1st respondent.

Mr. Bosire for the ex-parte applicant and Mr. Nyambati for the interested party made their respective submissions which I have duly considered.

Undersection 3 (1)of theLand Disputes Tribunals Act,a Tribunal has power to deal with a dispute involving:

“(a) Division of, or the determination of

boundaries to land including land

held in common.”

However, a Tribunal does not have jurisdiction to determine dispute involving ownership of a registered land. In the matter that was before the Tribunal, the suit property was registered in the names of 2 people who were both deceased.

The ex-parte applicant had obtained letters of administration in respect of the estate of her mother,Maseke Gorio Marinyobut the interested party had not obtained letters of administration in respect of the estate of the other co-owner,Moseti Charua Gisiwawa. He therefore had no locus standi to institute the proceedings.

The Tribunal awarded him 17 hectares of the suit property and directed the district surveyor to sub divide the land. The Tribunal further directed the district land registrar to issue new titles to the ex-parte applicant and the interested party.

The Tribunal thus exceeded its jurisdiction. Its award was a nullity. The same applies to the adoption proceedings.

Consequently, I grant the prayers as sought. The interested party shall bear the costs of the application.

DATED, SIGNED AND DELIVERED AT KISII THIS 22ND DAY OF JUNE, 2010.

D. MUSINGA

JUDGE.

22/6/2010

Before D. Musinga, J.

Mobisa – cc

Mr. Nyambati for the Interested Party

N/A for the Respondents

Court:Ruling delivered in open court on 22nd June, 2010.

D. MUSINGA

JUDGE.