JUDGEMENT OF THE COURT
By this appeal the appellant challenges the decision of the High Court of Kenya (Ouko.J., as he then was) rendered on 25th November 2011 by which his application dated 5th January 2011 was found incompetent and dismissed with costs. The application had sought an order of certiorari to quash a decision of the Bahati Land Disputes Tribunal made on 16th April 2008 to the effect that the title deed issued to the appellant over Land Reference DUNDORI/MUGWATHI BLOCK 2/32 be cancelled and a fresh one be issued to Ruth Njoki Waweru, the 3rd respondent.
The learned Judge in a brief ruling held that the application was by dint of Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules incompetent as it ought to have been brought within 6 months of the decision it sought to quash but was brought under some two and a half years.
In arriving at the conclusion, and in apparent reference to the appellant’s contention that the issue he raised was to the effect that the Tribunal had no jurisdiction to make the impugned order, the learned Judge expressed himself thus;
“It matters not that the tribunal may have acted without or in excess of jurisdiction. The court itself had no jurisdiction to entertain the application for leave. Not even the overriding objective principle can come to the aid of the applicant. The overriding objectives cannot override the express provisions of the law.”
That conclusion forms the gravamen of the appellant’s complaint before this court which was argued by Mr. Konosi, his learned counsel. He contended that the jurisdiction of the Land Disputes tribunal did not include determination of ownership of land which is vested in the courts by virtue of Section 59 of the repealed Land Registration Act, and the order to transfer the property from the 3rd respondent was clearly made in excess of jurisdiction and therefore a nullity. Counsel cited in aid of that submission this Court’s decision of JOSEPH MALAKWEN LELEI and ANOR v. RIFT VALLEY LAND DISPUTES APPEALS COMMITTEE and 2 OTHERS [2014] eKLR.
Mr Konosi went on to urge that the learned Judge erred to determine the application purely on its being brought out of the stipulated time yet time ought not to have run considering the decision complained of was a nullity. He cited various High Court decisions on the point including REPUBLIC VC JUDICIAL COMMISSION OF INQUIRY INTO THE GOLDENBERG AFFAIR and 3 OTHERS EX PARTE MWALULU and OTHERS [2004] eKLR. He contended that it would be contrary to public policy to allow the enforcement of the decision of the Tribunal that was made without jurisdiction.
Opposing the appeal Miss Njoroge, learned counsel for the 3rd respondent contended that the learned Judge was right to find that the application was time-barred. She castigated the appellant for failing to act with reasonable promptitude and for exhibiting unforgivable indolence. Pointing out that the 3rd respondent already held a title following the adoption of the tribunal’s decision, counsel beseeched us to dismiss the appeal. When we asked counsel whether she had any authorities in support of her client’s case, her response was that she could find none.
Mr. Konosi’s brief reply was that once the issue of nullity was raised even the Chief Magistrate ought not to have adopted, executed or otherwise given effect to orders that were obvious nullities.
The grant or refusal of an application for Judicial Review lies in the discretion of the High Court Judge and we are ordinarily very slow to interfere with its exercise. There are some situations however, that call upon us, indeed impose upon a on duty, as an appellate court, to interfere. This was succinctly stated by Sir Charles Newbold, President of the former Court in MBOGO vs. SHAH (1968) EA 93 at 96;
“We come now to the second matter which arises on this appeal, and that is the circumstances in which this court should upset the exercise of a discretion of a trial judge where his discretion, as in this case, was completely unfettered. There are different ways of enunciating the principles which have been followed in this Court, although I think they all more or less arrive at the same ultimate result. For myself I like to put in in the words that a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”
We agree with that enunciation of the law which has been followed faithfully by this Court for decades.
Did the learned Judge so wrongly exercise his discretion as to warrant our interference? We are afraid so. It is clear from the brief ruling that the learned Judge took a strict approach to the 6-month limitation period and concluded that the application before him was incompetent. Ordinarily, such a conclusion would be unimpeachable but, in the matter before the learned Judge, what was being challenged was not a decision properly made within jurisdiction against which time could run. Rather it was a nullity which amounted to nothingness. It was therefore incapable of commencing a reckoning of time and was definitely incapable of triggering a statutory bar, being in every respect barren and of no effect. Had he given full consideration to the nature of the order being challenged before him he would likely have arrived at a different decision.
We agree with the opinion of a 3-Judge bench of the High Court in REPUBLIC v. JUDICIAL COMMISSION OF INQUIRY INTO THE GOLDERNBERG AFFAIR and 3 OTHERS EX PARTE MALULU and 3 OTHERS (supra) that “nullities are not covered by the six months limitation both on the wording of the rules and as a matter of principle to the nature of nullities”. We agree further that courts are possessed of an inherent jurisdiction not confined to order 53 (now order 54) that can be invoked, whenever the courts are moved, to quash any nullities and illegalities. It would be an abdication of its duty for the court to which acts that are such nullities are exposed to fail to invalidate and quash them by appropriate orders and declarations.
Since it is indisputable that the Land Disputes Tribunal had no jurisdiction to purport to determine ownership and to cancel the appellant’s title to the land in question, we have no hesitation in finding that the tribunal’s decision was ultra vires, made without jurisdiction and therefore null and void ab initio. It amounted to nothing and could not form a sound basis upon which a decree could issue from the Magistrate’s Court. Any transfer of the title in execution of the said invalid decree was equally null and void. See MACFOY v. UNITED AFRICA CO. LTD (1961) 3 ALL ERR 1169.
The upshot of our consideration of this appeal is that it succeeds and we allow it. The ruling and order of the learned Judge is set aside and substituted by an order granting the appellant’s application dated 10th December 2010. The appellant shall have the costs of this appeal and the High Court proceedings.
Dated and delivered at Nyeri this 18th day of October, 2017.
P.N. WAKI
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JUDGE OF APPEAL
R.N. NAMBUYE
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JUDGE OF APPEAL
P.O. KIAGE
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JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR