Republic v Chepareria Land Disputes Tribunal Comprising of: Joseph Milliongar & another ; Ex parte: Matayo Kidopus;Lopuonyang Cheleken (Interested Party) [2021] KEELC 3773 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed a land tribunal's decision awarding someone part of a registered plot because tribunals cannot award registered land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the tribunal have jurisdiction to hear and determine the application, order that the interested party be given a portion of the applicant's land and to award costs to the interested party?
- 2.Did the tribunal violate the rules of natural justice with regard to the applicant?
- 3.Is the application defective for failure to exhaust all other legal options available to the applicant?
- 4.Should the decision of the tribunal be quashed?
- 5.Who should bear the costs of these proceedings?
Key legal issues
#Whether the Chepareria Land Disputes Tribunal had jurisdiction over land registered under the Registered Land Act
The tribunal acted beyond its powers in awarding a portion of registered land and in ordering subdivision and costs.
Section 3(1) of the Land Disputes Act granted only limited jurisdiction over boundary disputes, claims to occupy or work land, and trespass. The suit land was registered under the Registered Land Act, and the register was opened before the tribunal proceedings. Following the Court of Appeal in M'Marete, the tribunal exceeded its jurisdiction, and a body without jurisdiction has no power to make one more step.
Whether the tribunal violated the rules of natural justice by condemning the applicant unheard
Natural justice was violated; no service of tribunal summons was proved by affidavit evidence.
Article 50(1) guarantees every party a fair hearing. The only service proved related to the magistrate's court adoption, not tribunal summons. No replying affidavit exhibited the served summons; the parties' submissions could not substitute for affidavit evidence. The applicant was therefore unable to present his defence before the tribunal.
Whether failure to exhaust the statutory appeal to the provincial appeals committee barred the judicial review application
No; alternative remedies did not bar the judicial review because the applicant raised questions of jurisdiction and procedure proper for the High Court.
Applying the KRA v Darasa Investments and NEMA tests, the dispute concerned the decision-making process (jurisdiction and procedure) rather than merits, making judicial review the more suitable forum. Section 9(4) of the Fair Administrative Action Act also permits exemption from exhausting alternative remedies in the interest of justice.
Legal principles established
#- A tribunal or quasi-judicial body must act within its statutory jurisdiction; jurisdiction is granted by statute or constitution.
- A land disputes tribunal could not adjudicate over or award parcels of land registered under the Registered Land Act.
- Availability of an alternative remedy is not a bar to judicial review proceedings.
- Evidence of service of summons must be proved by affidavit; mere submissions cannot substitute for affidavit evidence.
Court orders
#- 1.An order of certiorari removing into the court and quashing the decision of the Chepareria Land Disputes Tribunal which was read and adopted as the judgment of the court in Kitale SPMC's Land Case No 54 of 2005
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction under Section 8 & 9 of the Law Reform Act (Cap 26) and Order LIII Rules 3 & 4 of the Civil Procedure Rules
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.
I hereby issue an order of certiorari removing into this court and quashing the decision of the Chepareria Land Disputes Tribunal which was read and adopted as the judgment of the court in Kitale SPMC's Land Case No 54 of 2005.
Jurisdiction is everything. Without it, a court has no power to make one more step.
It is trite now that a tribunal or any other quasi-judicial body must act within its jurisdiction. Jurisdiction is granted by statute or by the constitution.
the mere submissions of the parties at the tail end of these proceedings are not to be equated with evidence by affidavit and this court declines to take them as evidence of service.
availability of an alternative remedy is not a bar to judicial review proceedings
Issues in the judgment
#The parties are never formally named in the judgment; the ex parte applicant, respondents and interested party are referred to only by role, and the coram lists only the judge without a formal heading.
The judgment frames costs as an issue for determination but the final orders make no costs order and issue only prayer no 1.
The judgment is dated, signed and delivered at Nairobi via electronic mail although the court station is Kitale.
The parties' submissions are stated to have been filed in 2021 while the application is dated 20/7/2006, indicating an unexplained delay of nearly fifteen years not addressed in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chepareria Land Disputes Tribunal Comprising of: Joseph Milliongar & another ; Ex parte: Matayo Kidopus;Lopuonyang Cheleken (Interested Party) [2021] KEELC 3773 (KLR)", Case Analysis (2021). JR ELC Judicial Review Notice of Motion dated 20/7/2006 (Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3773/eng@2021-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.