[2013] KEHC 1937 (KLR)
The court declined to grant the oral application for orders of certiorari and prohibition because the application was made during a mention and not a hearing, which is not the proper procedural stage for determination of substantive applications. Additionally, the court took into account the respondent's indication...
Source-derived case information.
- Citation
- [2013] KEHC 1937 (KLR)
- Parties
- Applicant: Isaiah Kaberia M'Mungania; Respondent: Ministry of Lands Settlement District Commissioner Igembe South District; Respondent: Attorney General; Interested Party: Jacob Kaibunga Kiunga
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 73 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Oral Application at Mention
- Outcome
- Oral application for orders of certiorari and prohibition disallowed.
- Judges
- FM Njoroge
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Kaberia M'Mungania
Applicant
Ministry of Lands Settlement District Commissioner Igembe South District
Respondent
Attorney General
Respondent
Jacob Kaibunga Kiunga
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Oral Application at Mention
Legal Issues
- 1 Whether the oral application for orders of certiorari and prohibition could be granted at a mention rather than a hearing session.
- 2 Whether the absence of the interested party justified granting the orders sought.
- 3 Whether ongoing settlement discussions affected the propriety of granting the orders.
Ratio Decidendi
The court declined to grant the oral application for orders of certiorari and prohibition because the application was made during a mention and not a hearing, which is not the proper procedural stage for determination of substantive applications. Additionally, the court took into account the respondent's indication that there were ongoing efforts to settle the matter out of court. The court emphasized the importance of following due process and ensuring that all parties have a fair opportunity to be heard before substantive orders are issued.
Court Disposition
Oral application for orders of certiorari and prohibition disallowed.
Orders
- The oral application for orders of certiorari and prohibition is disallowed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERUJ.R NO. 73 OF 2011 (O.S)
ISAIAH KABERIA M'MUNGANIA ....................................................................APPLICANT/PLAINTIFF
VS
MINISTRY OF LANDS SETTLEMENT DISTRICT
COMMISSIONER IGEMBE SOUTH DISTRICT ............................1ST RESPONDENT/DEFENDANT
ATTORNEY GENERAL.....................................................................2ND RESPONDENT/DEFENDANT
JACOB KAIBUNGA KIUNGA...............................................................................INTERESTED PARTY
R U L I N G
The application herein is dated 19th October, 2011. it seeks orders that:
1. That an order of certiorari do issue to bring into the High Court for purpose of being Quashed the proceedings and the award of the 1st and the 2nd respondents dated 30/8/2011 in appeal No. 103 of 2011 in relation to Parcel NO. KIENGU/KANJOO/3644.
2. That an order of prohibition be issued to the exparte applicant against the 1st and 2nd respondents and the interested party to prohibit them from any further dealings with the exparte applicant's interest in Land Parcel NO. KIENGU/KANJOO/3644.
3. That the Honourable court be pleased to direct that the costs for and incidental to this application be borne by the interested party.
On 19/6/13, Mr Ondieki, the advocate for the applicant's prayed that the application be allowed because despite the fact that all the parties including the interested party had been properly served, the Interested Party was not in Court. He opined that perhaps the Interested Party was not interested in defending the application.
I have considered all the circumstances germane to the oral application made by Mr Odieki for the exparte applicant. I will, however, not allow the application for the following reasons;
1. When the oral application was made it was during a mention and not a hearing session.
2. Mr Kieti for the respondent had indicated, on the same day, that there was an attempt in the offing to have the matter settled out of court.
In the circumstances, I disallow the oral application.
Delivered in open court at Meru this 2nd day of August 2013
in the presence of: Court clerk Daniel/Mwanjaru
Nyenyire holding brief for Odieki for Exparte applicant.
Kieti present for respondent.
P. M. NJOROGE
JUDGE