[2005] KEHC 1806 (KLR)
The court held that the application for orders of prohibition and mandamus was overtaken by events because the tribunal's award had already been adopted as a judgment of the court before the application was filed. There were no pending proceedings to prohibit or compel, and therefore, the reliefs sought were...
Source-derived case information.
- Citation
- [2005] KEHC 1806 (KLR)
- Parties
- Applicant: Andrew Shibachi Khunyalo; Respondent: Chairman Ikolomani Land Disputes Tribunal Committee; Respondent: Simon Ashiono Musindi; Respondent: Boaz Ashiono Shisanya
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- ? 77 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judicial Review Orders
- Outcome
- application dismissed with costs to the 2nd and 3rd respondents
- Legal Topics
- Judicial Review, Land Disputes Tribunal Awards, Prohibition Orders, Mandamus, Adoption of Awards, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Shibachi Khunyalo
Applicant
Chairman Ikolomani Land Disputes Tribunal Committee
Respondent
Simon Ashiono Musindi
Respondent
Boaz Ashiono Shisanya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judicial Review Orders
Legal Issues
- 1 Whether the court can grant orders of prohibition after the tribunal award has already been adopted as a judgment of the court.
- 2 Whether an order of mandamus can issue to compel the tribunal or magistrate's court to review or rehear a concluded land dispute.
- 3 Whether the application for judicial review orders was overtaken by events.
Ratio Decidendi
The court held that the application for orders of prohibition and mandamus was overtaken by events because the tribunal's award had already been adopted as a judgment of the court before the application was filed. There were no pending proceedings to prohibit or compel, and therefore, the reliefs sought were unavailable and misconceived. The court found no merit in the application and dismissed it with costs to the 2nd and 3rd respondents.
Court Disposition
application dismissed with costs to the 2nd and 3rd respondents
Orders
- The application is dismissed.
- Costs awarded to the 2nd and 3rd respondents.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA Misc Civil Appli 77 of 2003
IN THE MATTER OF AN APPLICATION BY ONE MR. ANDREW SHIRACHI KHUNALO FOR LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEWANDIN THE MATTER OF THE DECISION OF THE IKOLOMANI LAND DISPUTES TRIBUNAL DECISION (UNDATED AND WITHOUT CASE REFERENCE) MADE AGAINST ANDREW SHIRACHI KHUNYALO IN RESPECT OF L.R. NO. IDAKHO/SHISESO/955ANDIN THE MATTER OF THE RULING/DECISION OF KAKAMEGA CM MISC. APPL. NO. 127 OF 1999 DELIVERED ON 13/10/99 BY R. A. OGANYO, RESIDENT MAGISTRATE WHICH DECISION FULLY ADOPTED THE SAID IKOLOMANI LAND DISPUTES TRIBUNAL COMMITTEE DECISION AS JUDGEMENTBETWEEN
ANDREW SHIBACHI KHUNYALO ….………………...………… APPLICANT
VERSUS
1. THE CHAIRMAN IKOLOMANI L.D.T. COMMITTEE…RESPONDENTS
2. SIMON ASHIONO MUSINDI3. BOAZ ASHIONO SHISANYARULING
The Resident Magistrate at Kakamega, R.A. Oganyo (Mrs.) on 13. 10. 99 adopted as a judgement of the court the award made by
Ikolomani Land Disputes Tribunal in Land Dispute No. Idakho/Shiseso/955.
In the Notice of Motion dated 25. 6.2003, the Applicant, Andrew Shibachi Khunyalo , sought an order of Prohibition to prohibit the Respondents, the Chairman of Ikolomani Land Disputes Tribunal and Simon Ashiono Musindi and Boaz Ashiono Shisanya from replying on the ruling or award of the said Tribunal and also to prohibit the Tribunal from entertaining the third Respondent’s claim. The second prayer in the Motion was for an order of prohibition to prohibit the Kakamega Chief Magistrate’s court from adopting as a judgement of the court the award made by the Ikolomani Land Disputes Tribunal.
It is not denied that the award was adopted on 13. 10. 99. The orders sought are therefore not available to the applicant for the simple reason that the Notice of Motion was overtaken by events.The award having been adopted as a judgement of the court on 13. 10. 99, it was not open to the Applicant to seek the orders in the Notice of Motion to prohibit the adoption. Nor would there be any legal basis for the order of mandamus sought to compel the Chairman of Ikolomani Land Disputes Tribunal and/or the Chief Magistrate court at Kakamega to review or rehear the land dispute or to strike out the proceedings in the Ikolomani Land Disputes Tribunal and/or the Ruling as there are no such proceedings and/or Ruling pending. The prayer for mandamus was obviously misconceived. There is no merit in the Notice of Motion and the reliefs sought in it are misplaced and cannot be granted in the circumstances of this case.
The application is dismissed with costs to the 2nd and 3rd Respondents. It is so orderedDated at Kakamega this 15th day of April, 2005.
G. B. M. KARIUKIJ U D G E