REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC.  CIVIL APPLICATION   NO. 41 OF 2011

IN THE MATTER OF AN APPLICATION BY MAKOKHA KATILA MAKUMBA FOR  ORDERS OF JUDICIAL REVIEW

AND

IN THE MATTER OF LAND DISPUTES ACT NO. 18 OF 1990

BETWEEN

REPUBLIC..............….................................................... APPLICANT

VERSUS

THE CHAIRMAN KANDUYI DIVISIONAL LAND DISPUTES

TRIBUNAL................................................................. RESPONDENT

EXPARTE

MAKOKHA KATILA MAKUMBA........................................ APPLICANT

AND

AURELLA NAKHANU KATILA

ROSEMARY NABWILE KATILA.......................... INTERESTED PARTIES

JUDGMENT

This is an  application seeking  Judicial review orders of certiorari. The exparte  applicant seeks the honourable court  to  remove and quash the order of the Bungoma Chief Magistrate's court which adopted  the findings of Kanduyi Land disputes Tribunal in land case No. 7 of 2011.  The application is supported by grounds on the  face of it,   affidavit of the exparte applicant and the statement.

The application is  opposed.The Respondent filed  grounds of opposition.The interested party filed a replying affidavit.

Exparte applicants case:

The applicant submits the Tribunal  exceeded jurisdiction when it ordered his   land to be sub-divided, resurveyed and the title deed cancelled.  Secondly the tribunal lacked jurisdiction to entertain the matter  which is over  registered land.  Finally, that the Tribunal  breached his rights of proprietorship conferred  to him by Sec. 27 & 28 of  Cap 300 of the Laws of Kenya.

It was their further submission that at the time the  dispute was lodged,  title for L.R.  No. E. Bukusu/W.Sangalo/1545 was already closed on sub division and therefore did not exist. He  urged the court to find the decision of the Tribunal was null and void and should be removed. The applicant  cited case law of Kipkoske A. Yetge Vs. Chuchure Mogeso, Civ. Appeal No. 90 of 1988 at Nakuru.  The court herein made a finding  that a  panel of elders cannot  confer jurisdiction unto themselves to determine the issue of title to land unless the matter is referred to them by a Magistrate's court.

Interested parties' case

In her affidavit, the interested party contends this application is misconceived.  She is a step mother  and sister respectively to the exparte applicant.  The 1st interested party's husband and who is  father to the applicant and 2nd interested party, owned the suit land L.R. E. Bukusu/W. Sangalo/264.  The  exparte applicant upon  becoming administrator of their  father's estate, sub divided the  land  No. 264 into three portions. He transferred two of these into  3rd parties names and got  himself registered  as owner of  L.R.  No. E.Bukusu/W. Sangalo/1545. He has sub divided this parcel and gave his children only. He gave the 1st interested party and her children  2 ½ acres  only.

The interested parties   aver the exparte  applicant was holding the land in trust for all the  family members of their deceased  husband and father. According to them, their claim  before the Tribunal  was  to  work or occupy land hence the Tribunal  had jurisdiction to hear the matter.

Respondents' case

The Respondent  listed  3 grounds in their opposition to  the application.  First, the  Respondent  heard and determined  a claim to occupy land in accordance with relevant  laws.  Secondly, Sec. 159 and 28 of RLA empowered  the Tribunal to  apply customary law. Finally this application is an abuse  of the court process  and  ought  to  be dismissed. On this limb, they submitted that non-joinder of the Chief Magistrate's court as a party to the proceedings  resulted into abuse of the court process.

In explaining the relevance of section 28 & 159 of RLA (repealed), they  relied on case law of  Nyeri HC Misc. Civ. Application NO. 129 of 2004 – R. Vs. Chairman LDT Kirinyaga exparte Kariuki.

Determination

The interested parties filed  a claim over Land parcel L.R.  No. E.Bukusu/W. Sangalo/1545 against the  exparte applicant.  The Tribunal made a finding in their favour by awarding them 13 acres to be curved  out of the suit land and left  the  exparte applicant 16 acres.  The  award was on basis of their share  as  2nd widow of Katila – deceased  and expate applicant as son of the first house. The exparte applicant submission that the tribunal adjudicted over parcel no 264 which already ceased to exist therefore had no basis.

The effect of the finding of  the  Tribunal was therefore distributing the asset (land) of a deceased person amongst the  beneficiaries.  It is not true as put by the interested party and the  Respondent that this was a claim to  occupy and/or work land.  It  was not a case of application of  customary land as brought out under Sec 28  and 159 of RLA. It was clearly a matter that involved the sharing of the suit land between the two houses of the Ainea Katila-deceased.

The interested party  rightly put it in her affidavit that the exparte applicant was holding the land in trust for all the family of the late Katila.  To  enforce/establish that trust, the Tribunal had  no jurisdiction to handle the case. The interested parties ought to go to a court of competent jurisdiction to claim this right. The award of the Tribunal  would also amount to  cancellation of  title  of  L.R.  No. E.Bukusu/W. Sangalo/1545 were it to be enforced.  Issuance of  orders for cancellation of title is a preserve of the high court only. To this extent, the tribunal exceeded jurisdiction in making such an order.

The powers of the Tribunal is vested  on it under sec 3 (1) of Land Disputes Tribunal Act  (repealed).  None of the  above issues they  determined is listed under  section 3 (1). Unlike  the case of Kipkoske A. Yetge, supra, where panel of elders waited for  matters to be referred to it from the magistrate's court, The Land Disputes Tribunal is given original jurisdiction by  Law.  I find the case supra as not applicable in this instance. However the same law  limited those powers.

On the last submission by the respondent that failure to join the magistrate court was fatal, that is more of semantics. The trial court merely adopted a finding of the Respondents. In any event, that is a matter curable by invoking the provisions of article 159 of the Constitution. I make a finding that that failure was not fatal and the application is properly before the court. The reuslt is,  I find the Tribunal exceeded powers bestowed on it by Sec. 3 (1) in attempting to re-distribute the  estate of  a deceased person.  It also exceeded  its powers in making orders  that would result in  canceling of title  L.R.  No. E.Bukusu/W. Sangalo/1545.  The interested parties may have a  genuine claim but they went to the wrong forum to realize that claim.  Given   the circumstances of this  case that parties are family members, i order that each party shall  bear their costs of these proceedings.

JUDGMENT DATED, SIGNED and DELIVERED in open court this  5th  day of  November     2013.

A.OMOLLO

JUDGE.