Kakamega County Council v Chairman Tiriki East Lands Disputes Tribunal & 3 others [2011] KECA 142 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a Land Disputes Tribunal had no authority to award registered land to people who were not the registered owners and were never even told about the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court judge had power to interfere with, and declare a nullity, the leave to apply for judicial review granted by another judge of concurrent jurisdiction
- 2.Whether the appellant's application for leave to apply for certiorari and prohibition was filed out of the six-month limitation period
- 3.Whether the Tiriki East Land Disputes Tribunal had jurisdiction over a dispute concerning ownership of registered land in which the registered owner was not a party
- 4.What final orders should follow, including whether to remit the judicial review application for rehearing or determine it finally
Key legal issues
#Power of a judge of concurrent jurisdiction to nullify leave to apply for judicial review granted by another judge
Kariuki, J. acted wrongly in declaring the leave a nullity; the respondents had not challenged the grant of leave, and a judge cannot sit on appeal over a decision of a judge of equal jurisdiction.
Leave had been granted by a different judge after the appellant's chamber summons. The 2nd, 3rd and 4th respondents never took steps to challenge that decision. Judicial review is a special jurisdiction dealing with the decision-making process; any review of a concurrent judge's decision is circumscribed. The judge below therefore exceeded his powers by treating the leave as a nullity and striking out the motion.
Jurisdiction of a Land Disputes Tribunal over ownership of registered land where the registered owner was not a party
The tribunal's proceedings were irregular because the registered owner of the land was neither a party nor given notice, and the tribunal purported to direct registration of the land in favour of parties who were not the registered owners; the decision was liable to be quashed.
The land was registered in the appellant's name, yet the tribunal determined ownership between parties who were not registered owners and directed the Lands Department to register the land in the claimants' names. Given that section 7(2) of the Land Disputes Tribunals Act allows the magistrate's court to enter judgment in accordance with the tribunal's decision, there was a real risk of transfer of the land to persons not entitled to it under the law.
Whether the appeal court should remit the judicial review motion for rehearing or determine it finally
Although the matter would ordinarily be remitted, the court exercised its powers under rule 31 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act to quash the tribunal's decision finally.
The judge below never dealt with the merits of the judicial review motion, so ordinarily a rehearing would follow. However, the overriding objective mandated by sections 3A and 3B of the Appellate Jurisdiction Act required just, expeditious, proportionate and affordable resolution. Remitting the matter would increase expense and delay; the court therefore concluded the matter itself by quashing the tribunal decision.
Legal principles established
#- A judge of concurrent jurisdiction has no power to sit on appeal against, or interfere with, a decision of another judge granting leave to apply for judicial review, unless the parties move to challenge that decision through proper review procedures.
- Among the grounds for an order of certiorari are that the decision-making authority lacked or exceeded jurisdiction, acted unreasonably, illegally, with procedural impropriety, or against the rules of natural justice.
- Under the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, the Court of Appeal may finally determine a matter instead of remitting it to the High Court where remittal would increase expense and delay.
- A decision made by a tribunal over a dispute affecting a party who was neither before it nor given notice, in respect of land registered in that party's name, is irregular and shall not stand.
Court orders
#- 1.Appeal allowed
- 2.The High Court order dismissing (striking out) the appellant's notice of motion set aside
- 3.The decision of the Tiriki East Land Disputes Tribunal given on 24th April, 2002 brought before the High Court and quashed
- 4.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C. Misc. Appl. No. 2 of 2003
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (Cap 9), including sections 3(2), 3A and 3B, and rule 31 of the Court of Appeal Rules
Relief refused
#Remittal of the judicial review application to the High Court for rehearing
The court invoked the overriding objective to avoid further expense and delay and determined the matter itself
Costs of the appeal in favour of the appellant
The appellant was partly responsible for the irregular tribunal proceedings by misleading the respondents about the ownership of the land
Costs
Each party should bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is axiomatic that a Judge has no power to sit on appeal against a decision of another judge of concurrent jurisdiction.
In the result we are constrained to allow the appeal, set aside the High Court order dismissing the appellant's notice of motion dated 7th January, 2003.
we order that the decision of the Tiriki East Land Disputes Tribunal given on 24 th April, 2002 be and is hereby brought before the High Court and quashed.
That being so, we are of the view and so order that each party should bear own costs.
Among the reasons which would entitle a court, in an application for judicial review, for an order of certiorari, is that the decision making authority lacked or acted beyond is jurisdiction to make the decision under attack
In the result in view of the provisions of section 3(2) of The Appellate Jurisdiction Act, and rule 31 of the Court of Appeal Rules
Issues in the judgment
#The judgment refers inconsistently to the tribunal: the coram and parties name 'Tiriki East Lands Disputes Tribunal' while the narrative at one point refers to the 'Tiriki Divisional Land Disputes Tribunal' and elsewhere to the 'Tiriki Land Disputes tribunal', without explaining whether these are the same body.
The judgment states the appeal was from the decision and ruling of the High Court, but the dispositional passage describes setting aside the order dismissing a notice of motion dated 7th January, 2003, whereas the narrative earlier describes a notice of motion dated 17th December, 2002; the date discrepancy is not explained.
The judgment records that a single Judge granted an order dispensing with service upon 'the 1st appellant' when the party referred to is in fact the 1st respondent (The Chairman Tiriki East Lands Disputes Tribunal).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kakamega County Council v Chairman Tiriki East Lands Disputes Tribunal & 3 others [2011] KECA 142 (KLR)", Case Analysis (2011). Civil Appeal No. 39 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/142/eng@2011-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.