[2009] KEHC 988 (KLR)
The court found that the applicant's notice of motion for judicial review was fatally defective because it was not accompanied by the same documents as the summons for leave, as required by Order 53 rule 4 of the Civil Procedure Rules. Additionally, the application was defective for want of proper form and...
Source-derived case information.
- Citation
- [2009] KEHC 988 (KLR)
- Parties
- Applicant: John Mose Nyabwera; Respondent: Manga Division Land Disputes Tribunal; Respondent: Resident Magistrate Nyamira Law Courts; Interested Party: Simeon Mokaya Nyabwera; Interested Party: Pirase Kemunto Nyambane
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 78 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Application to Strike Out
- Outcome
- application struck out with costs
- Legal Topics
- Judicial Review Procedure, Form and Content of Applications, Jurisdiction of Land Disputes Tribunal, Registered Land Act Scope
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mose Nyabwera
Applicant
Manga Division Land Disputes Tribunal
Respondent
Resident Magistrate Nyamira Law Courts
Respondent
Simeon Mokaya Nyabwera
Interested Party
Pirase Kemunto Nyambane
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Application to Strike Out
Legal Issues
- 1 Whether the notice of motion for judicial review was fatally defective for failure to comply with Order 53 rule 4 of the Civil Procedure Rules.
- 2 Whether the application was defective for want of proper form and procedure, including naming of parties.
- 3 Whether the court had jurisdiction to entertain the application in light of the procedural defects.
Ratio Decidendi
The court found that the applicant's notice of motion for judicial review was fatally defective because it was not accompanied by the same documents as the summons for leave, as required by Order 53 rule 4 of the Civil Procedure Rules. Additionally, the application was defective for want of proper form and procedure, as it was not made in the name of the Republic at the instance of the affected party. These procedural defects deprived the court of jurisdiction to entertain the application. Consequently, the court struck out the application with costs, holding that there was no competent application before it to inquire into the alleged excess of jurisdiction by the Manga Division Land...
Court Disposition
application struck out with costs
Orders
- The application is struck out for being fatally defective.
- The applicant shall pay the costs of the application.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
Misc Appli 78 of 2008
IN THE MATTER OF LAND DIPSUTES TRIBUNAL ACT NO.18 OF 1990
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL (FORMS AND PROCEDURE) RULES 1993, LEGAL NOTICE NO.13 OF 1993.
AND
IN THE MATTER OF MANGA DIVISION LAND CASE NO. 9 OF 2007
AND
IN THE MATTER OF CIVIL PROCEDURE ACT AND CIVIL PROCEDURE RULES CAP 21 LAWS OF KENYA
AND
IN THE MATTER OF AN APPLCIAITON BY JOHN MOSE NYABWERA FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITION
BETWEEN
JOHN MOSE NYABWERA.....................................................APPLICANT
AND
MANGA DIVISION LAND DISPUTES TRIBUNAL......................1ST RESPONDENT
RESIDENT MAGISTRATE NYAMIRA LAW COURTS
............................................................................................2ND RESPONDENT
AND
SIMEON MOKAYA NYABWERA
PIRASE KEMUNTO NYAMBANE...........................INTERESTED PARTIES
RULING
The summons filed on 17/12/2008 that led to leave being granted on 4/2/2009 to bring the application for judicial review were accompanied by the notice to the Registrar, Statement of Claim and Verifying Affidavit. When the notice of motion was filed on 24/2/2009 it was accompanied by a Supporting Affidavit to which were annexed various documents. Under Order 53 rule 4 of the Civil Procedure rules it was expected of the exparte applicant to file the motion together with the Notice to the Registrar, the Statement of Claim and the Verifying Affidavit –the same documents that had accompanied the summons for leave. It follows that the motion is fatally defective, and to that extent the court agrees with Mr. Nyambati for the interested parties. (See Republic.v. Municipal Council of Kerichoandanother, HC Misc.Application No.25 of 2001 at KerichoandSchifbau –Und Entwicklungesellschafft Tangermunde and Company KG .v. The Public Procurement Complaints Review and Appeals Board and another, Civil appeal no. 174 of 2005).
Mr. Nyambati also raised the issue of the format of the motion Judicial review orders are issued in the name of the Republic and applications therefore are made in the name of the Republic at the instance of the person affected by the action or omission in issue. In the instant application John Mose Nyabwera should have been theexparte applicant. (See Jotham Mulati Welamondi .V. The Electoral Commission of Kenya, H.C.Misc. Application no.81 of 2002 at Bungoma).Again, the application is defective for want of form and procedure.
The application sought to attack the jurisdiction of Manga Division Land Disputes Tribunal in dealing with the title and ownership of land registered under the Registered Land Act. It was contended that what the Tribunal did went beyond the powers conferred to it by section 3(1) of the Land Disputes Tribunal Act, No. 18 of 1990. I find there is no competent application before court that can give it jurisdiction to inquire into these allegations. I strike out the application with costs.
Dated, signed and delivered at Kisii this 16th day of November, 2009.
A.O.MUCHELULE
JUDGE
16/11/2009
16/11/2009
Before A.O.Muchelule-J
Court clerk-Mongare
Mr. Nyambati –present
COURT: Ruling in open court.
A.O.MUCHELULE
JUDGE
16/11/2009