Republic v Nakuru Municipality Land Disputes Tribunal, Elizabeth Kobilo Chepkuto,Resident Magistrate Nakuru & Kiprono A. Cherop [2014] KEHC 5469 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

JUDICIAL REVIEWNO.42 OF 2010

IN THE MATTER OF AN APPLICATION BY KIPRONO A. CHEROP UNDER ORDER LIII OF THE CIVIL PROCEDEURE RULES

AND

IN THE MATTER OF THE REGISTERED LAND ACT CAP 300

AND

IN THE MATTER OF LAND DISPUTES ACT NO 18 OF 1990

REPUBLIC ……………………….……………….. APPLICANT

VERSUS

AND

NAKURU MUNICIPALITY LAND DISPUTES TRIBUNAL ……..…………………… 1ST RESPONDENT

ELIZABETH KOBILO CHEPKUTO…...........................................................................2ND RESPONDENT

THE RESIDENT MAGISTRATE NAKURU………………..... .....……………................3RD RESPONDENT

AND

KIPRONO A. CHEROP……………………..............................................................................……SUBJECT

RULING

1. Pursuant  to  leave granted on  22nd October, 2010 to  commence  Judicial  Review  Proceedings, the exparteApplicant  filed a notice  of  motion on 9th November 2007 dated  7th November, 2010 seeking  the following orders:

(i)    An  order  of  certiorari to remove to the High Court and  quash the proceedings and decision made by the Nakuru District Land Disputes Tribunal on  10th April, 2007 in respect to title No. Dundori/Mugwathi Block 2/300 (hereinafter referred to as the suit property).

(ii)   An  order  of  certiorari to remove to the High Court and  quash the proceedings and judgement made by the Nakuru Resident Magistrate on 6th September, 2007 in respect of the suit property.

(iii)   An order of prohibition against the respondents from executing the decree issued on 6th September, 2007    in Nku LD No. 37/07 in respect to the suit property.

(iv)   Costs

2. The application is supported by the affidavit of the applicant/ subject sworn on 7th November, 2007 in which reference is made to the statement of facts accompanying the application for leave, the affidavit verifying the facts and the order  of the court granting him leave to apply for Judicial review.

3. The application is premised on the grounds:

(a)   That the award of the tribunal exhibits an error on the face of the record

That the order is defective and not in accordance to the laws applicable thereto

(c )   That the award was made in excess of jurisdiction

That the Resident Magistrate adopted an award which was defective in the first instance

(e)   That the subject herein had been granted leave by the honourable court to institute the present application.

4. The subject, Kiprono A. Cherop contends that in 1980 he bought 50 shares from members of Kalenjin Enterprises and was subsequently allocated Dundori/ Mugwathi Block 2/229 and Dundori/Mugwathi Block 2/300 and took possession of the two parcels.

5. In 2007, the 2nd  respondent filed a dispute No. 1/2007 before the Nakuru Dispute Land  Tribunal claiming to be the lawful owner.

6. After hearing the claim the tribunal issued an award as follows:

(i)    Plot  Dundori/ Mugwathi Block 2/300 (Koelel) measuring approximately 0. 6 Ha. belonged to the plaintiff Elizabeth Kobilo Chepkut.

(ii)   The defendant Kiprono A Cherop, must vacate the plot within 30 days. He must also remove the caution he placed on the title deed for plot Dundori/ Mugwathi Block 2/300 (Koelel)

(iii) The defendant Kiprono A Cherop should pay to the plaintiff, Elizabeth Kobilo Chepkuto Kshs. 10,000/= as costs of the dispute.

7. The award of the Tribunal was subsequently adopted by the Resident Magistrate's court Nakuru as judgment of the court on 6th September, 2007 which is the subject of challenge in this judicial review.

8. The applicant on his part, filed submissions which his counsel chose to fully rely on. In summary, she submitted  that the 1st respondent lacked jurisdiction to try a matter relating to ownership of land: That  the tribunal exceeded its  mandate stated in section 3(1) of the Land Disputes Tribunal Act:  that the adoption of the award of the tribunal by the Magistrates court was improper as the court was adopting something that did not exist due to lack of jurisdiction and therefore the court should  issue an order of prohibition against the respondents from executing the decree issued on 6th September, 2007 in respect to the suit property.

9. She relied on the following authorities which l have read and considered:-

1.    Republic vs. Chairman Land Disputes Tribunal Mwingi District & Another

2. Republic vs. Chairman Makueni District land Disputes Tribunal & Anor. (2004) eKLR

10. The application was not opposed. The respondents did not enter appearance or file any response to the application.

11. From the pleadings and the submissions filed by the subject I find the sole issue for determination to be whether the decision of the Nakuru District Land Tribunal was unlawful, and if so, whether the applicant is entitled to orders of judicial review as prayed.

12. The question arising on the issue for determination is whether the tribunal had power to hear and determine a claim touching on ownership of the land. If the decision was made in excess of the tribunal's power, it matters not that the decision was the right decision in the circumstances. If the decision was ultra vires, unlawful, unreasonable and/or against the rules of natural justice, this court will have no option but to quash the decision. See Kenya National Examination Council V. RepublicEx parteGeoffrey Gathenji Njoroge and others.

13. The  remedy  of  judicial  review is  concerned not  with  the  private  rights  or  merits  of the  decision being  challenged but with  the  decision  making  process.  Its purposes  is to ensure that the  individual  is given  fair treatment by the  authority  to  which  he  has  been  subjected. See  Republic V  Secretary  of state  for  Education and  Science  (Exparte) Avon County  Council (1991)  I  ALL ER  282  at  285. The   point is  more  succinctly  made  in the English  case  ofchief  Constable  of  North  Wales  Police  Vs  Evan (1982) I  W.L.R 1155, by  Lord  Hailsham of  St  Marlebone.

Thus:

“the  purpose  of  judicial review  is to ensure that the  individual  receives  fair treatment, and  not  to ensure that the  authority after  according  fair  treatment, reaches  on a matter   which  it  is  authorized  by  law   to  decide  for   itself a  conclusion  which is  correct in the  eyes  of the court”

14. Therefore, a decision of  an  inferior  court  or  public  authority  may be  quashed ( by an order  of  certiorari  made  on  application of  Judicial  review) where the  court or  authority acted without  jurisdiction, or  exceeded its  jurisdiction, or  failed  to comply  with the rules  of   natural  justice  in a case where  these rules  are  applicable, or  where   there  is an  error   of  law  on the  face  of the record  or the  decision  is unreasonable   in the  Halsbury sense.

15. Under Section 3 of the Land Disputes Tribunals Act, the Tribunal's jurisdiction is restricted to hearing and determining cases involving-

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

(b)    aclaim to occupy or work land; or

(c)    a claim on trespass to land.

16. Disputes relating to title or the possession of land registered under the Registered Land Act, Chapter 300 Laws of Kenya (now repealed) were the preserve of the High Court or the Resident Magistrate's courts depending on the monetary value of the suit property. Section 159 of the Registered Land Act Cap 300 states:

'' Civil suits and proceedings relating to the title to, or the possession of, land, or to the title to a lease or charge, registered under this Act, or to any interest in the land, lease or charge, being an interest which is registered or registrable under this Act, or which is expressed by this Act not to require registration, shall be tried by the High Court and, where the value of the subject matters in dispute does not exceed twenty five thousand pounds, by the Resident Magistrate’s Court, or, where the dispute comes within the provisions of section 3 (1) of the Land Disputes Tribunals Act in accordance with that Act.''

17. There is no doubt that the issue before the Tribunal and subsequently before the Resident Magistrate's Court Nakuru related to ownership of the suit property. In determining the issue of ownership of the suit property, the Tribunal no doubt exceeded its jurisdiction. Any action done without jurisdiction is in law a nullity, that is to say of no legal force. As such it could not and was not validated by its adoption by the lower court.

18. Having found the order of the Tribunal to have been a nullity in law, permitting it to continue forming the record of the Tribunal or the lower court is, in my view, a violation of the subject's rights.

19.  It is on these grounds that the court quashes the  decision of the Nakuru Land Disputes Tribunal. There shall therefore issue an order of certiorari to bring to this court, and quash the decision of the Nakuru Land Disputes Tribunal dated 10th April 2007, and adopted by the Nakuru Resident Magistrate on 6th September 2007.

20. An order of prohibition is also issued against the respondents from executing the decree issued on 6th September, 2007

21. No order is made as to costs as the respondents and interested parties did not enter appearance.

Dated, Signed and Delivered at Nakuru on this 4th day of    April 2014.

L N WAITHAKA

JUDGE

Present

Ms  Ndeda  for the  applicant

Ms  Katambi  for the  3rd  and  4th  Respondent

N/A for  1st and  2nd   Respondent

L N WAITHAKA

JUDGE