[2005] KEHC 84 (KLR)
The court found that the applicant's Notice of Motion was overtaken by events because the award of the Ikolomani Land Disputes Tribunal had already been adopted as a judgment by the Chief Magistrate's Court on 13.10.99. As such, there was no legal basis to grant orders of prohibition or mandamus, since there were no...
Source-derived case information.
- Citation
- [2005] KEHC 84 (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
- Miscellaneous Application 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
- 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 applicant is entitled to orders of prohibition against the adoption of the Ikolomani Land Disputes Tribunal award by the Chief Magistrate's Court.
- 2 Whether an order of mandamus can issue to compel the Tribunal or the Chief Magistrate's Court to review, rehear, or strike out proceedings already concluded.
Ratio Decidendi
The court found that the applicant's Notice of Motion was overtaken by events because the award of the Ikolomani Land Disputes Tribunal had already been adopted as a judgment by the Chief Magistrate's Court on 13.10.99. As such, there was no legal basis to grant orders of prohibition or mandamus, since there were no pending proceedings or rulings to prohibit or review. The reliefs sought were therefore misplaced and could not be granted. The application was dismissed 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 with costs to the 2nd and 3rd respondents.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Misc Appli 77 of 2003
IN THE MATTER OF AN APPLICATION BY ONE MR. ANDREW SHIRACHI
KHUNALO FOR LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW
AND
IN 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/955
AND
IN 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 JUDGEMENT
BETWEEN
ANDREW SHIBACHI KHUNYALO ..................................................................APPLICANT
VERSUS
1. THE CHAIRMANIKOLOMANI L.D.T. COMMITTEE
2. SIMON ASHIONO MUSINDI
3. BOAZ ASHIONO SHISANYA……….........................................................RESPONDENTS
RULING
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 ordered.
Dated at Kakamega this 15th day of April, 2005.
G. B. M. KARIUKI
J U D G E