[2009] KEHC 236 (KLR)
The application was dismissed because the applicant failed to comply with mandatory procedural requirements for judicial review. Specifically, there was no evidence that leave of court had been obtained prior to filing the application for mandamus, nor was there evidence that all persons directly affected by the...
Source-derived case information.
- Citation
- [2009] KEHC 236 (KLR)
- Parties
- Applicant: John Rodgers Midega; Respondent: Land Registrar Kakamega; Respondent: Rose Maloba Etemesi; Respondent: Salome Nyasili; Respondent: Jemimah Rapando; Respondent: James Okuomi; Respondent: Jonathan Munialo Shisanya
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 120 of 2001
- Procedural Posture
- Succession Cause / Ruling on Notice of Motion for Mandamus
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Mandamus, Land Registration, Succession Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Rodgers Midega
Applicant
Land Registrar Kakamega
Respondent
Rose Maloba Etemesi
Respondent
Salome Nyasili
Respondent
Jemimah Rapando
Respondent
James Okuomi
Respondent
Jonathan Munialo Shisanya
Respondent
Procedural Posture
Succession Cause / Ruling on Notice of Motion for Mandamus
Legal Issues
- 1 Whether the applicant was entitled to an order of mandamus to compel the Land Registrar to register him as owner of Plot No. BUTSOTSO/SHIKOTI/9088.
- 2 Whether the applicant complied with the procedural requirements for judicial review, including obtaining leave and serving all affected parties.
Ratio Decidendi
The application was dismissed because the applicant failed to comply with mandatory procedural requirements for judicial review. Specifically, there was no evidence that leave of court had been obtained prior to filing the application for mandamus, nor was there evidence that all persons directly affected by the orders sought had been served. These procedural lapses rendered the application incompetent, regardless of the substantive merits of the applicant's claim regarding the registration of the property. The court emphasized that compliance with Order LIII of the Civil Procedure Rules is a prerequisite for the grant of judicial review remedies, and failure to do so is fatal to the...
Court Disposition
application dismissed
Orders
- The application is dismissed for want of merit and procedural compliance.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Succession Cause 120 of 2001
IN THE MATTER OF THE ESTATE OF BENJAMIN ODUNGA OTIENO –
DECEASED
BETWEEN
JOHN RODGERS MIDEGA …..……….. PETITIONER/ APPLICANT
VERSUS
LAND REGISTRAR KAKAMEGA ………….………. RESPONDENT
RULING
By a Notice of Motion dated 20th August, 2008 the applicant is seeking an order of Mandamus to compel the Kakamega District Land Registrar to register the Petitioner as owner of Plot No. BUTSOTSO/SHIKOTI/9088.
The Applicant is the Administrator of the estate of the late Benjamin Odunga Otieno. The deceased was the registered owner of Plot No. Butsotso/Shikoti/304. The Applicant contends that the property was illegally sub-divided and created Plot No. Butsotso/Shikoti/9088.
The Applicant contends that his registration as the Administrator of the deceased’s estate was cancelled on the ground that he had not surrendered the original title deed yet the title deed was surrendered on 3/4/2001.
The record shows that the deceased was a judgement debtor before he died, vide Kakamega Chief Magistrate Miscellaneous Case No. 67 of 2000. The Creditors in that case were awarded some portions of the suit property, Butsotso/Shikoti/304 and this is the main reason why the land was sub-divided.
The record also shows that there are other several respondents other than the Land Registrar, Kakamega. These include Rose Maloba Etemesi, Salome Nyasili, Jemimah Rapando, James Okuomi and Jonathan Munialo Shisanya.
Order LIII (1) (i)requires that before an application for an order of Mandamus, Prohibition or Certiorari is made, leave should be granted by the court. Further, Order LIII (3) (1) requires that the application for such order must be served on all persons directly affected should the orders being sought be granted.
There is no evidence that the applicant was granted leave to file the current application for Judicial Review. There is also no evidence in form of affidavit of service that all the above named respondents who will be affected by the orders being sought were served. I do find that the application herein is incompetent as no leave to file the same was granted to the applicant. The application lacks merit and the same is dismissed. There shall be no order as to costs.
Delivered, dated and signed at Kakamega this 1st day of October, 2009.
SAID J. CHITEMBWE
J U D G E