REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
Miscellaneous Civil Application 52 of 2008
IN THE MATTER OF APPLICATION BY MWITA CHACHA MASWI TO APPLY FOR JUDICIAL REVIEW (CERTIORARI AND PROHIBITION)
IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990
IN THE MATTER OF LAND DISPUTES TRIBUNAL COMMITTEE (MASABA DIVISION) KURIA
IN THE MATTER OF THE RESIDENT MAGISTRATE’S COURT AT KEHANCHA
IN THE MATTER OF KEHANCHA RESIDENT MAGISTRATE’S LAND DISPUTE’S TRIBUNAL CASE NO. 23 OF 2008
IN THE MATTER OF LAND DISPUTES TRIBUNAL COMMITTEE MASABA DIVISION BUGUBE/MASABA/205 OF 29/04/05 CASE NO. 12
REPUBLIC ………………………………………….. APPLICANT
LAND DISPUTES TRIBUNAL COMMITTEE
(MASABA DIVISION) KURIA …………… 1ST RESPONDENT
THE RESIDENT MAGISTRATE’S COURT
AT KEHANCHA …………………………….. 2ND RESPONDENT
NCHAGWA MWITA BURURE ……….......... INTERESTED PARTY
MWITA CHACHA MASWI
The ex parte applicant sought an order of certiorari to remove into this court for purpose of quashing the proceedings and decision of the 1st respondent in its Land Dispute case No. 12 of 2008 and adoption proceedings thereof by the second respondent.
He also sought an order of prohibition to prohibit the 1st respondent from hearing or dealing with the issue of ownership of land parcel No. BUGUMBE/MABERA/205, hereinafter referred to as “the suit land”, and a further order to prohibit the second respondent from enforcing the 1st respondent’s decision relating to the suit land.
The applicant is the registered proprietor of the suit land. He was registered as the proprietor thereof on 30th September, 1974 and on 22nd May, 1978 he was issued with a title deed. That notwithstanding, in 2008 the interested party filed a case before the 1st respondent claiming that he was the owner of the suit land.
The 1st respondent heard the case and in its award delivered on 11th April, 2008 ordered that three quarters of the suit land be transferred to the interested party.
The 1st respondent forwarded its decision to the 2nd respondent for adoption which was done on 9th October, 2008.
The applicant contended that the 1st respondent acted outside its jurisdiction by ordering change of ownership of a parcel of land that was registered. That is true. The 1st respondent’s jurisdiction is limited by the provisions of section 3 (1) of the Land Disputes Tribunals Act. Such a tribunal cannot purport to nullify a title deed. If the interested party verily believed that he had a valid claim over the suit land, he ought to have filed his case before the High Court.
The respondents and the interested party were served with this application but none of them contested the same.
The orders sought are merited and I grant the same. The 1st respondent and the interested party shall bear the costs of this application.
DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF DECEMBER, 2009.
Before D. Musinga, J.
Mobisa – cc
N/A for the applicant
N/A for the respondent
Court: Ruling delivered in open court on 16th December, 2009.