[2011] KEHC 3399 (KLR)
The court found that the applicant had demonstrated sufficient grounds for leave to apply for an order of certiorari, primarily because the award made by the 1st Respondent and adopted by the 2nd Respondent appeared to have been made outside the jurisdiction conferred by section 3 of the Land Disputes Tribunals Act....
Source-derived case information.
- Citation
- [2011] KEHC 3399 (KLR)
- Parties
- Applicant: Geoffrey K. Samoei; Respondent: Chairman, Sigowet Land Disputes Tribunal; Respondent: Chief Magistrate’s Court, Kericho; Respondent: Cleophas K. Samoei
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 9 of 2011
- Procedural Posture
- Miscellaneous Application / Application for Leave to Apply for Order of Certiorari
- Outcome
- Leave to apply for certiorari granted; leave to operate as stay; directions for filing and service of Notice of Motion; costs in the cause.
- Legal Topics
- Judicial Review, Certiorari, Tribunal Jurisdiction, Land Disputes, Leave to Apply, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey K. Samoei
Applicant
Chairman, Sigowet Land Disputes Tribunal
Respondent
Chief Magistrate’s Court, Kericho
Respondent
Cleophas K. Samoei
Respondent
Procedural Posture
Miscellaneous Application / Application for Leave to Apply for Order of Certiorari
Legal Issues
- 1 Whether the award made by the 1st Respondent was within the jurisdiction conferred by section 3 of the Land Disputes Tribunals Act, No. 18 of 1990.
- 2 Whether leave should be granted to apply for an order of certiorari to quash the order adopting the tribunal's award.
- 3 Whether the leave granted should operate as a stay of proceedings.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for leave to apply for an order of certiorari, primarily because the award made by the 1st Respondent and adopted by the 2nd Respondent appeared to have been made outside the jurisdiction conferred by section 3 of the Land Disputes Tribunals Act. The court was satisfied that the applicant had an arguable case warranting judicial review. Consequently, leave was granted, and the court further ordered that such leave would operate as a stay of the impugned order until the Notice of Motion is determined or further orders are made. The court also set timelines for filing and service of the substantive motion and related...
Court Disposition
Leave to apply for certiorari granted; leave to operate as stay; directions for filing and service of Notice of Motion; costs in the cause.
Orders
- Leave is granted to the applicant to apply for an order of certiorari to quash the order dated 17th January, 2011.
- The leave granted shall operate as a stay until the Notice of Motion is determined or until further orders of the court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
MISC. CIVIL APP. NO. 9 OF 2011 (JR)
GEOFFREY K. SAMOEI …………………………………… APPLICANT
VERSUS
THE CHAIRMAN, SIGOWET LAND
DISPUTES TRIBUNAL ………………………………..1ST RESPONDENT
THE CHIEF MAGISTRATE’S COURT
KERICHO ……………………………………………...2ND RESPONDENT
CLEOPHAS K. SAMOEI ……………………………...3RD RESPONDENT
RULING
The Applicant, Geoffrey K. Samoei, has applied to this court under Order 53, Rule 1 of the Civil Procedure Rules 2010 for leave to apply for an order of certiorari to remove into this court for quashing the order dated17th January, 2011 made by the 2nd Respondent herein, the Resident Magistrate at Kericho, in the Chief Magistrate’s Court in Misc. Application No. 100 of 2010 following adoption of an award dated 24th November, 2010 made by the 1st Respondent.
I have considered the submissions made by Mr. J.M. Motanya, learned counsel for the Applicant. I have also perused the Verifying Affidavit and the Statement of Facts filed pursuant to Rule 1(2) of Order 53 of the Civil Procedure Rule 2010. I am persuaded that there are sufficient grounds for granting the leave sought not least because the award made by the1st Respondent which was adopted by the 2nd Respondent appears to have been made outside the plenitude of the powers conferred on the 1st Respondent by section 3 of the Land Disputes Tribunals Act, No. 18 of 1990. Accordingly, I allow the application and grant to the Applicant the leave sought.
Pursuant to Rule 3(1) of the Civil Procedure Rules 2010, I direct that the Applicant shall file the Notice of Motion within twenty one(21) days from the date hereof. Such motion shall be served on the Respondents and on such persons as may be affected by it within fourteen (14) days of filing and shall be mentioned in this court on 6th June, 2011 at 9. 00a.m.
The Applicant shall, not later than seven(7) days before be 6th June, 2011, file in this court an affidavit giving the names of the person served with the Notice of Motion, the dates and times when and places where service has been effected.
Pursuant toRule 1(4)of the Civil Procedure Rules 2010, I order that the leave herein granted shall operate as a stay until the Notice of Motion is determined or until further orders of this court.
The costs of this application shall be costs in the Notice of Motion to be filed.
DATED at KERICHO this 23rd day of February, 2011
G.B.M. KARIUKI, SC
RESIDENT JUDGE
COUNSEL APPEARING
Mr. J.M. Motanya Advocate for the Applicant
Court Clerk – Mr. Koech