[2011] KEHC 4210 (KLR)
The court found that the applicants had established sufficient grounds for the grant of leave to apply for judicial review orders. The judgment of the Senior Principal Magistrate was based on an award by the Olokurto Land Disputes Tribunal, which was alleged to have acted in excess of or without jurisdiction. The...
Source-derived case information.
- Citation
- [2011] KEHC 4210 (KLR)
- Parties
- Applicant: Henry Ole Kipelian; Applicant: Kipugen Ole Kipelian; Applicant: Sinteria Ole Kipelian; Respondent: The Chairman Olokurto Land Dispute Tribunal; Respondent: Senior Principal Magistrate, Narok; Respondent: The District Surveyor, Narok District; Respondent: The Land Registrar, Narok District; Interested Party: Gladys Nasieku Tamoo; Interested Party: David Leposo Tamoo
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 5 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review Orders
- Outcome
- Leave granted to apply for orders of certiorari and prohibition; leave to operate as stay.
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Tribunal Jurisdiction, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Ole Kipelian
Applicant
Kipugen Ole Kipelian
Applicant
Sinteria Ole Kipelian
Applicant
The Chairman Olokurto Land Dispute Tribunal
Respondent
Senior Principal Magistrate, Narok
Respondent
The District Surveyor, Narok District
Respondent
The Land Registrar, Narok District
Respondent
Gladys Nasieku Tamoo
Interested Party
David Leposo Tamoo
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review Orders
Legal Issues
- 1 Whether the applicants are entitled to leave to apply for orders of certiorari and prohibition against the respondents.
- 2 Whether the Olokurto Land Disputes Tribunal acted in excess of or without jurisdiction in making the award.
- 3 Whether the application for leave was filed within the statutory six-month limitation period.
Ratio Decidendi
The court found that the applicants had established sufficient grounds for the grant of leave to apply for judicial review orders. The judgment of the Senior Principal Magistrate was based on an award by the Olokurto Land Disputes Tribunal, which was alleged to have acted in excess of or without jurisdiction. The application for leave was filed within the statutory six-month period as required by Section 9 of the Law Reform Act. Accordingly, the court granted leave to the applicants to apply for orders of certiorari and prohibition, and ordered that the leave granted would operate as a stay of implementation or enforcement of the impugned judgment and award until the determination of the...
Court Disposition
Leave granted to apply for orders of certiorari and prohibition; leave to operate as stay.
Orders
- Leave to apply for orders of certiorari and prohibition is granted.
- 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
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
MISCELLANEOUS CIVIL APPLICATION NO. 5 OF 2011
HENRY OLE KIPELIAN................................................................................................1ST APPLICANT
KIPUGEN OLE KIPELIAN...........................................................................................2ND APPLICANT
SINTERIA OLE KIPELIAN...........................................................................................3RD APPLICANT
AND
THE CHAIRMAN OLOKURTOLAND DISPUTE TRIBUNAL..............................1ST RESPONDENT
SENIOR PRINCIPAL MAGISTRATE,NAROK.....................................................2ND RESPONDENT
THE DISTRICT SURVEYOR, NAROK DISTRICT...............................................3RD RESPONDENT
THE LAND REGISTRAR, NAROK DISTRICT......................................................4TH RESPONDENT
AND
GLADYS NASIEKU TAMOO.......................................................................1ST INTERESTED PARTY
DAVID LEPOSO TAMOO..........................................................................2ND INTERESTED PARTY
RULING
The applicants, Messrs Henry Ole Kipelian, Kipungen Ole Kipelian, and Sinteria Ole Kipelian have sought in their chamber summons application dated 20th January 2011, leave to apply for an order of certiorari to remove into this Court for quashing the judgment dated 20/7/2011 delivered by the 2nd Respondent, the Senior Principal Magistrate at Narok in Misc. land case No. 13 of 2010pursuant to the award of the 1st Respondent, the Olokurto Land Disputes Tribunal dated 10th April 2010.
The applicants also seek leave to apply for an order of Prohibition to prohibit the 3rd and 4th Respondents from implementing or enforcing the judgment and the award sought to be quashed.
The applicants also seek an order of stay.
I have perused the application and the Statement of facts and the Verifying affidavit. I have also duly considered the submissions made by Mr. W.R. Kiprono, the learned Counsel for the Applicants.
I am satisfied that the applicants have established that there are sufficient grounds to warrant the grant of the leave sought. The applicants have shown that the judgment of the 2nd Respondent was entered on the basis of an award of the 1st Respondent and that the said award was made by the 1st Respondent either in excess of its jurisdiction or without jurisdiction.
Under Section 9 of the Law Reform Act, Cap 26, the Applicants were enjoined to seek leave, as they have done, within six moths after the date of the 2nd Respondent’s judgment. Time under Section 9 of the Law Reform Act started to run on 21/7/2010. It seems to me that the applicants came to Court for leave in the nick of time. The six months period expired on 21/1/2011, or so it seems to me.
In the circumstances, I allow the applicants’ Chamber Summons application dated 20/1/2011 and grant, pursuant toRule 1 of Order 53 of Civil Procedure Rules 2010, leave to apply for the orders sought.
I order that the leave herein granted shall operate as a stay until the Notice of Motion to be filed as hereinafter directed is determined or until further orders of this court.
I direct that the Applicants shall file the Notice of Motion pursuant to Rule 3 of Order 53 of the Civil Procedure Rules 2010, within 21 days of today and shall within 21 days of filing serve the same on the Respondents named in the chamber summons for leave, and on all such persons as may be affected by it.
The Motion shall be filed in this file and shall be mentioned on 23/3/2011 at 9. 00am in this Court.
The costs of the application for leave shall be costs in the cause.
DATEDat KERICHO this 27th day of January 2011
G.B.M KARIUKI, SC
RESIDENT JUDGE
COUNSEL APPEARING
Mr. P. Kiprop, State Counsel, for the Republic
Mr. W. R. Kiprono, Advocate, for the Accused
Mr. R. Koech, Court clerk