[2004] KEHC 187 (KLR)
The court found that the applicant had raised arguable issues regarding the lawfulness of the allocation and registration of the property in question, justifying the grant of leave to apply for judicial review orders of certiorari and prohibition. However, since the third party in whose name the property is...
Source-derived case information.
- Citation
- [2004] KEHC 187 (KLR)
- Parties
- Applicant: Stephen Muthami Mbau; Respondent: Chief Land Registrar and/or Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 132 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Judicial Review
- Outcome
- Leave granted to apply for orders of certiorari and prohibition; leave not to operate as a stay; costs in the cause.
- Judges
- GG Okwengu
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Land Allocation, Fraudulent Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Muthami Mbau
Applicant
Chief Land Registrar and/or Commissioner of Lands
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Judicial Review
Legal Issues
- 1 Whether the applicant has established sufficient grounds for leave to apply for orders of certiorari and prohibition against the Chief Land Registrar and/or Commissioner of Lands.
- 2 Whether the decision or process leading to the registration of the property in the name of a third party is amenable to judicial review.
- 3 Whether leave should operate as a stay in circumstances where the third party is not a party to the proceedings.
Ratio Decidendi
The court found that the applicant had raised arguable issues regarding the lawfulness of the allocation and registration of the property in question, justifying the grant of leave to apply for judicial review orders of certiorari and prohibition. However, since the third party in whose name the property is registered was not joined as a party, the court declined to grant leave to operate as a stay, as such an order would adversely affect the interests of a non-party. The court emphasized that the substantive issues would be addressed at the hearing of the main motion.
Court Disposition
Leave granted to apply for orders of certiorari and prohibition; leave not to operate as a stay; costs in the cause.
Orders
- Leave is granted to the applicant to apply for orders of certiorari and prohibition.
- Leave shall not operate as a stay.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
MISC APPLI 132 OF 2003
IN THE MATTER OF APPLICATION FOR LEAVE TO APPLY FOR ORDERS FOR JUDICIAL REVIEW BY STEPHEN MUTHAMI MBAU
R U L I N G
Stephen Muthami Mbau hereinafter referred to as the Applicant has moved this court under Order LIII rule 1(1)(2) of the Civil Procedure Rules seeking leave of the court to apply for orders of certiorari to call into this court for purposes of being quashed the decision of the Chief Land Registrar and or Commissioner of lands to register one Alfayo Arisa Omwansa as proprietor/lessee from the government, of land Title No. Nanyuki Municipality Block 9/167, and further leave to apply for an order of prohibition against the commissioner of lands from allocating, registering or in any manner conferring proprietorship interest in respect of the aforementioned property.
In the statement of facts which is supported by annextures the Applicant maintains that he is the lawful allottee of the aforementioned property but that the commissioner of lands or the Chief Registrar of lands has caused the land to be fraudulently transferred to a 3rd party. It is evident that the 3rd party is not a party to the present proceedings. It is not clear which decision the Applicant intends to challenge as per paragraph 5 of the statement of facts. The applicant states that the process leading to the registration of the property in the name of the 3rd party commenced with the issuance of a letter of allotment to the 3rd party dated 7th May 1999. Is this then the decision that is sought to be quashed?
In short there are certain pertinent issues. Nevertheless I will grant the applicant leave to apply for orders of certiorari and prohibition as I am sure these issues will be ventilated at the appropriate time.
Since the 3rd party in whose name the aforementioned property is registered is not a party to this suit, I do not find it appropriate to order the leave to operate as a stay as such order will affect the interest of a person who is not a party to the suit.
The upshot of the above is that I do grant leave to the applicant to apply for orders of certiorari and prohibition.
Costs shall be in the cause.
Dated this 12th day of November 2004
H. M. OKWENGU
JUDGE