REPUBLIC v LAND DISPUTE TRIBUNAL KOSIRAI DIVISION & 2 OTHERS EX-PARTESAMUEL KIPCHUMBA KOGO & ANOTHER [2012] KEHC 4006 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT ELDORET

Judicial Review 28 of 2009

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

AND

THE LAND DISPUTE TRIBUNAL KOSIRAI DIVISION........................1ST RESPONDENT

THE PRINCIPAL MAGISTRATE KAPSABET LAW COURTS...........2ND RESPONDENT

THE MARAKWET DISTRICT COMMISSIONER................................3RD RESPONDENT

AND

KIPTOO ARAP KOGO......................................................................INTERESTED PARTY

AND

SAMUEL KIPCHUMBA KOGO......................................................EXPARTE APPLICANT

DAVID KIPKEMBOI TEMUGE........................................................EXPARTE APPLICANT

JUDGMENT

On 31st July, 2009, Mwilu J, granted the applicants leave to apply for orders of certiorari to remove into this court for the purpose of quashing the award of the Land Disputes Tribunal Kosirai Division made on 16th November, 2006 and the decision of the Kapsabet Principal Magistrate adopting, as the court’s judgment, the said award on 30th June, 2009.

Pursuant to that leave, the applicants lodged this Notice of Motion on 6th August 2009 seeking the said relief. The main grounds for the application are that the award was based on a claim which was statute barred and that the Kosirai Land Disputes Tribunal had no jurisdiction to entertain the claim. The Notice of Motion is supported by a statutory statement duly verified by an affidavit of Samuel Kipchumba Kogo, the 1st applicant. Both documents elaborate the two grounds. Annexed to the affidavit are a copy of the impugned award, a certificate of official search of the suit title, a Title Deed and proceedings before Kapsabet Principal Magistrate’s Court.

The application as opposed by the interested party who has filed a replying affidavit. He has deposed, inter alia, that he purchased the suit property from one Jemutai Tapkelelei (deceased) and the applicants, as administrators of his estate, were properly sued before the said tribunal and that the decision of the tribunal was correct and just.   Although the respondents filed grounds of opposition through the office of the Attorney General, counsel, instructed chose not to support the decision of the tribunal.

The applicants and the interested party filed written submissions in which they reiterated the stand-points taken in their respective affidavits.   I have considered the application, the pleadings filed and the submissions filed.Having done so, I take the following view of the matter.   The applicants seek an order of certiorari to remove into this court for the purpose of quashing the decisions of Kosirai Land Disputes Tribunal made on 16th November, 2006 and the ruling of Kapsabet Principal Magistrate adopting the said award on 30th June, 2009.

The award of the Tribunal is brief and I set it out below:-

“4.   AWARD/VERDICT

The tribunal had heard both sides of the

interested parties and findings show that

under our Nandi Customary Law the plaintiff

Mr. Kiptoo Arap Kogo ID NO. 1909290is

Awarded land measuring area (1. 2) Acres from

Nandi/Ngecheck/64 measuring area approximately

(5. 0) HA currently registered under the defendants:

Mr. Samuel Kipchumba Kogo and Mr. David

Kipkemboi Temuge.   The balance of the remaining

area (5. 0) HA should be divided equally by the

defendants: Samuel Kipchumba Kogo and

Mr. David Kipkemboi Temuge.”

It is trite that an order of certiorari can issue to quash a decision of an inferior tribunal if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with.   In the matter at hand, the Land Disputes Tribunal-Kosirai could only determine disputes described in section 3(1) of the Land Disputes Tribunals Act No. 8 of 199 (now repealed).   The section reads as follows:-

“3 (1) Subject to this act all cases of a civil

nature involving a dispute as to:

(a)The division of or the determination of boundaries to and including land held in common;

(b)A claim to occupy or work land or;

(c)Trespass to land,

shall be heard and determined by a

Tribunal established under section 4. ”

Before the Kosirai Land Disputes Tribunal, the Interested Party, Kiptoo Arap Kogo, claimed 1. 2acres from Nandi/Ngecheck/64 which portion he alleged to have purchased from the Late Jemutai Tapkelelei Temuge.   The Interested Party therefore sought to enforce a contract of sale of land. Such a claim could not lawfully be entertained by the tribunal given the jurisdiction circumscribed by the above provisions of the land Disputes Tribunals Act aforesaid. In purporting to entertain the interested Party’s claim, the Kosirai Land Disputes Tribunal clearly acted without and in excess of jurisdiction.

In the premises the order of certiorari is available to the applicants as sought. An order of certiorari shall accordingly issue removing the decision of Kosirai Land Disputes Tribunal made on 16th November, 20106 and adopted by the Principal Magistrate, Kapsabet on 30th June, 2009, into this court and the same is hereby quashed.

Each party shall bear its own costs of these proceedings.

It is so ordered.

DATED AND DELIVERED AT ELDORET

THIS 5TH DAY OF JUNE, 2011

F. AZANGALALA

JUDGE

Read in the presence of:-

Ms. Chepkurui H/B for Mr. Barasa for the Applicant and

Mr. Miyienda H/B for Ms. Kipseii for Interested Party.

F. AZANGALALA

JUDGE

5TH JUNE, 2012