REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA 

AT KERICHO

CIVIL MISC. APPL. NO. 3 OF 2009(JR)

 

JOHN ROTICH …………………………..................................................................................................…………………………..APPLICANT

VERSUS

CHAIRMAN RORET LAND DISPUTE TRIBUNAL ................................................................................................................1^ST RESPONDENT

THE PRINCIPAL MAGISTRATE COURT KERICHO ...................................................................................................…….2^ND RESPONDENT

BORNES ROTICH ………………………………................................................................................................………….. 3^RD RESPONDENT

 

RULING

 

In the Notice of Motion dated 19^th March, 2010 and in the Statutory Statement and verifying affidavit filed with the Notice to the Registrar, the         ex parte Applicant, JOHN ROTICH, prayed that an order of certiorari be issued to bring into this court for quashing the decision of the Roret Land Disputes Tribunal dated 8^th May, 2008 which was adopted as a judgment of the Court on 31^st July, 2008 in Kericho Magistrate’s Court Miscellaneous Civil Application No. 26 of 2008. It was the contention of the ex parte Applicant that the said Land Disputes Tribunal did not have jurisdiction to determine the matter. Mr. K.L. Kipyegon, the Learned Counsel who appeared for the ex parte Applicant submitted that the provisions of Section 3(1) of the Land Disputes Tribunals Act, No. 18 of 1990 did not confer any power on the Tribunal to deal with the title or to make a determination such as the Tribunal made when it offered compensation and purported to divide the land comprised in the titles to the land referred to in the decision. 

 

Mr. J.K. Koech who represented the 3^rd Respondent opposed the Motion and relying on the 3^rd Respondent’s replying affidavit submitted that the land in question was held jointly by the ex parte Applicant and Norah Chepkurui Rono, his client and consequently, he said, the Tribunal had jurisdiction under Section 3(1) to determine issues of division of land.

 

The decision of the Tribunal was as follows:

1.     John Rotich to enjoy use of his land 1.13 acres because David Rotich did not pay for it.

2.     John Rotich to compensate David Rotich for the tea bushes planted by David Rotich in John Rotich’s land”

 

Did the Tribunal have jurisdiction to determine the dispute and make the above decisions? The provisions of Seciton 3(1) of Act 18 of 1990 do not confer jurisdiction on the Tribunal to deal with or determine issues of contract which the Tribunal purported to do. Nor do the provisions in the said section vest any jurisdiction in the tribunal to make orders for compensation as it did. These are matters that fell outside the purview of the Tribunal’s jurisdiction. The plenitude of its powers do not encompass the decisions that it made. The decisions were therefore null and void. Their adoption by the Resident Magistrate Court in Kericho P.M. Misc. Civil Application No. 26 of 2008 did not revive or breathe new life into them. They remained dead.

 

It is my finding that the decisions sought to be quashed were made by a body that had no power to make them. I therefore allow the application and issue an order of certiorari to bringing into this court for quashing the decision of Roret Land Disputes Tribunal dated 8^th May, 2008 which was purportedly adopted as an order of the court on 31^st July, 2008 in Kericho Principal Magistrate’s Court Miscellaneous Civil Application No. 26 of 2008. As a consequence of this and for the avoidance of doubt, I declare the order adopting the said decision in Kericho Principal Magistrate’s Court Misc. Civil Application No. 26 of 2008 as null and void. The six months period stipulated in Seciton 9(3) of the Law Reform Act, Cap 26, for applying to quash any judgment, order, or decree, conviction or other proceedings does not apply where, like here, such order is rendered null and void by reason of nullification of other proceedings from which such order, or other proceedings spring from.

 

I award the costs of the application to the ex parte Applicant against the Respondents who shall be liable jointly and severally.

 

 

DATED at KERICHO this 6^th day of December, 2010

 

 

G.B.M. KARIUKI,sc

RESIDENT JUDGE

COUNSEL APPEARING

Mr. K.L. Kipyegon advocate for the ex parte Applicant

Mr. J.K. Koech advocate for the 3^rd Respondent

N/A by the Attorney General for the 1^st and 2^nd Respondents

Court Clerk – Mr. Bett