[2010] KEHC 2337 (KLR)
The court found that the applicant had properly complied with the procedural requirements for seeking leave to apply for judicial review by certiorari. The court further held that there was no justifiable reason to deny the applicant access to justice. Given that the subject land was at risk of being sub-divided and...
Source-derived case information.
- Citation
- [2010] KEHC 2337 (KLR)
- Parties
- Applicant: Jonathan Bwire; Respondent: Rosemary Auma Abangi; Respondent: The Chairman Budalangi Land Disputes Tribunal; Respondent: SRM Court Busia E.H. Keago
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 64 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave and Stay
- Outcome
- Leave granted; leave to operate as stay of execution; directions for filing and service; costs in the main application.
- Legal Topics
- Judicial Review, Certiorari, Stay of Execution, Land Disputes Tribunal, Leave to Apply, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Bwire
Applicant
Rosemary Auma Abangi
Respondent
The Chairman Budalangi Land Disputes Tribunal
Respondent
SRM Court Busia E.H. Keago
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave and Stay
Legal Issues
- 1 Whether the applicant should be granted leave to file for orders of certiorari against the Land Disputes Tribunal decision.
- 2 Whether the leave granted should operate as a stay of execution of the Tribunal's decision.
Ratio Decidendi
The court found that the applicant had properly complied with the procedural requirements for seeking leave to apply for judicial review by certiorari. The court further held that there was no justifiable reason to deny the applicant access to justice. Given that the subject land was at risk of being sub-divided and potentially lost before the substantive application could be heard, the court determined that it would be futile to proceed if the land was no longer available. Therefore, the court exercised its discretion to grant leave and ordered that the leave operate as a stay of execution of the Tribunal's decision until further orders, to preserve the status quo and ensure the...
Court Disposition
Leave granted; leave to operate as stay of execution; directions for filing and service; costs in the main application.
Orders
- The leave sought is granted and Notice of Motion shall be filed within 14 days of today.
- Applicant to serve application within 21 days.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA
Miscellaneous Application 64 of 2010
JONATHAN BWIRE……………………………….....................................…….APPLICANT
-VERSUS-
ROSEMARY AUMA ABANGI……………..................................………1ST RESPONDENT
THE CHAIRMAN BUDALANGI
LAND DISPUTES TRIBUNAL……….................................................…2ND RESPONDENT
THE SRM COURTBUSIA E.H. KEAGO……..................................…..3RD RESPONDENT
R UL I N G
The application is for leave to file a Notice of Motion for Orders of Certiorari calling to this court a Land Dispute’s Tribunal decision adopted by the lower court for quashing.The application is properly accompanied with a statutory statement and a verifying affidavit carrying various annextures. The Notice required to be served upon the Registrar was properly served.In the above circumstances there is no good reason for this court to prevent or hinder a citizen’s access to the seat of justice.The court hereby therefore grants the leave sought.
The applicant in addition seeks the granted leave to be made to operate as stay of execution of the Tribunal’s decision or order.The ground he gives is that relying on the Tribunal’s decision the Interested Party is presently embarking on
sub-division of the parcel of land the subject of this suit. He must be stopped until the intended suit is determined, he argued.
I have considered the argument.I agree.It will be futile to proceed with the suit if at the end of it, the land will have disappeared.I will accordingly allow the leave to be a stay.
ORDERS:
1. The leave sought is granted and Notice of Motion shall be filed within 14 days of today.
2. Applicant to serve application within 21 days.
3. Respondents and/or Interested Parties so served to file and serve their replying affidavits within 21 days of such service.
4. Leave granted to operate as stay of execution until further orders.
5. Mention for further directions on 27. 7.2010.
6. Costs in the main application.
Dated and delivered at Busia this 22nd day of June 2010.
D.A. ONYANCHA
J U D G E