Mary Kerubo Ogoti v Chief Magistrate’s Court, Kisii Law Courts & 5 others [2016] KEELC 25 (KLR)

Section 3(1) of the repealed Act confined tribunals to disputes over boundaries, claims to occupy or work land, and trespass. The complaint before the Kiogoro Tribunal concerned ownership and title to registered land, and it ordered cancellation of the petitioner's title. Under the Registered Land Act only the High Court could cancel a title under section 143(1). The tribunal therefore acted without jurisdiction and its decision was a nullity.

Section 7 of the Act contemplated adoption only of lawful decisions. Since the tribunal's award was a nullity for want of jurisdiction, there was nothing on which the magistrate could enter judgment or issue a decree. The court endorsed Justice Okong'o's reasoning and its own prior decision in Joseph Oginga Onyoni & 2 Others v Hon. Attorney General & 2 Others, holding that enforcement of a void award was equally void.

Following implementation of the void decision the petitioner's title was cancelled and the land registered in the 6th respondent's name. The court, exercising supervisory authority over subordinate courts and tribunals, will intervene where they act in excess of jurisdiction and will not allow an illegality to stand. The cancellation was thus an infringement of the petitioner's property and due process rights, warranting rectification of the register.

The judicial review application was struck out for want of leave under Order 53 Rule 1(1) and never heard substantively, so no res judicata arises. Whether the petitioner acquired title fraudulently without succession proceedings is a separate claim requiring particulars pleaded and proved by oral evidence in a trial, and cannot be investigated in a petition challenging only the process of cancellation.