[2014] KEHC 4037 (KLR)
The court found that the application for leave to commence judicial review proceedings raised substantive legal issues that warranted full deliberation and should not be dismissed on technicalities. The issue of limitation, raised by the respondents, was deemed a matter to be addressed in the main application rather...
Source-derived case information.
- Citation
- [2014] KEHC 4037 (KLR)
- Parties
- Applicant: John Amwoka Chiliswa; Applicant: Hosea Okhupo Kulundu; Respondent: The District Land Registrar; Respondent: The Attorney General; Interested Party: Obadia Hosea Kulundu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 8 of 2013
- Procedural Posture
- Judicial Review / Ruling on Leave to Commence Judicial Review
- Outcome
- Leave to commence judicial review granted.
- Judges
- SJ Chitembwe
- Legal Topics
- Judicial Review Leave, Land Ownership Dispute, Tribunal Jurisdiction, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Amwoka Chiliswa
Applicant
Hosea Okhupo Kulundu
Applicant
The District Land Registrar
Respondent
The Attorney General
Respondent
Obadia Hosea Kulundu
Interested Party
Procedural Posture
Judicial Review / Ruling on Leave to Commence Judicial Review
Legal Issues
- 1 Whether the application for leave to commence judicial review proceedings is time-barred due to delay.
- 2 Whether the tribunal had jurisdiction to award land already registered in the applicant's name.
- 3 Whether the application raises substantive legal issues warranting full hearing.
Ratio Decidendi
The court found that the application for leave to commence judicial review proceedings raised substantive legal issues that warranted full deliberation and should not be dismissed on technicalities. The issue of limitation, raised by the respondents, was deemed a matter to be addressed in the main application rather than at the leave stage. The applicant, as the registered owner of the suit land, is entitled to have the court consider the merits of his challenge to the tribunal's decision. Accordingly, leave was granted to file the substantive application within 21 days.
Court Disposition
Leave to commence judicial review granted.
Orders
- The application dated 14/11/2013 is allowed as prayed.
- The applicant to file his substantive application within 21 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
JUDICIAL REVIEW NO: 8 OF 2013
JOHN AMWOKA CHILISWA..................................................1ST APPLICANT
HOSEA OKHUPO KULUNDU.................................................2ND APPLICANT
VERSUS
THE DISTRICT LAND REGISTRAR...................................1ST RESPONDENT
THE ATTORNEY GENERAL...............................................2ND RESPONDENT
OBADIA HOSEA KULUNDU.........................................INTERESTED PARTY
RULING
The applicants filed the chamber summons dated 14/11/2013 seeking leave to commence Judicial Review proceedings. The court directed that the application be served upon the respondents. The interested party filed a replying affidavit sworn on 9/12/2013. According to the respondents the application is time barred as the decision of the tribunal was made on 29/11/2009. There has been inordinate delay on the part of the applicant.
The applicants contention is that he is the registered owner of the suit land namely S/KABRAS/LUKUME/1273. The land dispute tribunal awarded 2 acres to the interested party. The applicant maintains that the tribunal had jurisdiction to do so as the land was already registered in the applicant’s name. The decision of the Tribunal was adopted by the Resident magistrate on 8/10/2012. I have gone through the pleadings and do find that there is need to have the issues raised by both parties to be fully deliberated upon by the court. The applicant is the registered owner of the suit land and should only be disposed of his land through the normal channels. The application raises issues of law and should not be dismissed on technicalities. The issue of limitation will be dealt with in the main application.
In the end I do allow the application dated 14/11/2013 as prayed. The applicant to file his substantive application within 21 days hereof. Costs shall follow the outcome of the main application.
Dated, signed and Delivered at Kakamega this 3rd day of July 2014.
SAID J. CHITEMBWE
JUDGE