[2005] KEHC 248 (KLR)
The court found that the applicant had raised sufficient grounds to warrant leave to apply for an order of certiorari, given the unclear basis of the Tribunal's decision and the possible issue of jurisdiction over land within a National Irrigation Scheme. However, the court declined to grant a stay of the Tribunal's...
Source-derived case information.
- Citation
- [2005] KEHC 248 (KLR)
- Parties
- Applicant: Faith Kagure Muturi; Respondent: The Chairman Mwea Divisional Land Disputes Tribunal; Respondent: Judith Wawira Mwai
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Certiorari and Stay
- Outcome
- Leave to apply for certiorari granted; stay of decision refused; costs in the cause.
- Judges
- I Lenaola
- Legal Topics
- Judicial Review, Certiorari, Tribunal Jurisdiction, Land Disputes, Irrigation Schemes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Faith Kagure Muturi
Applicant
The Chairman Mwea Divisional Land Disputes Tribunal
Respondent
Judith Wawira Mwai
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Certiorari and Stay
Legal Issues
- 1 Whether the applicant should be granted leave to apply for an order of certiorari to quash the decision of the Mwea Land Disputes Tribunal.
- 2 Whether a stay of the Tribunal's decision should be granted pending determination of the substantive application.
Ratio Decidendi
The court found that the applicant had raised sufficient grounds to warrant leave to apply for an order of certiorari, given the unclear basis of the Tribunal's decision and the possible issue of jurisdiction over land within a National Irrigation Scheme. However, the court declined to grant a stay of the Tribunal's decision, as the applicant failed to provide adequate evidence of potential loss or prejudice. The court emphasized that the matter appeared to be a family dispute and that the rightful use of the holding was not clearly established, thus justifying the need for judicial review proceedings but not interim relief.
Court Disposition
Leave to apply for certiorari granted; stay of decision refused; costs in the cause.
Orders
- Leave is granted to the applicant to file for an order of certiorari as sought in prayer 1 of the application dated 3.1.2005.
- Prayer for stay of the Tribunal's decision is refused.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Misc Appli 1 of 2005
FAITH KAGURE MUTURI ……………….......................................……………. APPLICANT
VERSUS
1. THE CHAIRMAN MWEA DIVISIONAL LAND DISPUTES TRIBUNAL…..RESPONDENTS
2. JUDITH WAWIRA MWAI
RULING
1. The Applicant, Faith Kagure Muturi seeks leave under Order LIII Rule 1 of the Civil Procedure Rules to apply for an Order of Certiorari to quash a decision made on 9. 12. 2004 by the Mwea Land Disputes Tribunal in its case No. D/26D Vol. 4/262 in respect of Rice Holding No. 2335 Thiba Section.
2. I have looked at the Supporting Affidavit and I notice that the Applicant is a licensee of the Rice Holding aforesaid and it comprises 4 acres. The land is apparently situated within a National Irrigation Scheme and the use thereof is lawfully under the mandate given to National Irrigation Board as provided for in the Irrigation Act, Cap. 347.
3. The proceedings of the Mwea Land Disputes Tribunal show that the Tribunal approached the matter as a family dispute requiring resolution but it is unclear if the Tribunal as alleged, based its decision on a purported trust. It is also unclear if by ordering sub-division of the Rice Holdings it was also ordering that the ownership thereof has been determined.
4. Because of these unclear matters, it would be fair that the Applicant be granted leave to file for an Order of Certiorari as sought at prayer 1 of the Application.
5. As regards the prayer for stay of the decision, I do not have sufficient material before me to exercise the discretion in favour of the Applicant. I have seen no loss that he may suffer if the decision is effected. The matter is one that the family has been grappling with and the 1st Respondent is a member of her family. The rightful use of the holding is unclear hence, the need to file proceedings in Judicial review I am not inclined to grant that limb of the Application.
6. In the event, I shall grant prayer 1 of the Application dated 3. 1.2005.
7. Costs thereof shall be in the cause.
Orders accordingly.
Read in open Court this 7th day of February 2005
I. LENAOLA
JUDGE
In the presence of;
Mr. Okwaro for Applicant
N/A for Respondent
I. LENAOLA
JUDGE