[2014] KEHC 4911 (KLR)
The court held that it was functus officio in relation to the present application because the judicial review proceedings had been dismissed for non-prosecution on 17th July 2002. As a result, the entire suit was closed and no further proceedings could be undertaken unless the dismissal order was set aside. The...
Source-derived case information.
- Citation
- [2014] KEHC 4911 (KLR)
- Parties
- Applicant: Julius Morkong Chemtai; Respondent: Lewis Boiyo; Respondent: Reuben Kibelet; Respondent: Silas Kibelet; Respondent: Geoffrey Kibelet
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 68 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application struck out; injunctive orders vacated; costs to respondents
- Legal Topics
- Functus Officio, Execution of Decree, Injunctive Relief, Land Subdivision, Judicial Review Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Morkong Chemtai
Applicant
Lewis Boiyo
Respondent
Reuben Kibelet
Respondent
Silas Kibelet
Respondent
Geoffrey Kibelet
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the High Court is functus officio in relation to the present application following dismissal of the judicial review application.
- 2 Whether the applicant can seek execution of the tribunal decree in this forum or must proceed before the court that adopted the award.
- 3 Whether the injunctive relief and subdivision orders sought can be granted in the circumstances.
Ratio Decidendi
The court held that it was functus officio in relation to the present application because the judicial review proceedings had been dismissed for non-prosecution on 17th July 2002. As a result, the entire suit was closed and no further proceedings could be undertaken unless the dismissal order was set aside. The applicant, having been aware of the dismissal, could not seek execution or other substantive orders in this forum. The appropriate course for the applicant was to pursue execution before the court that adopted the tribunal's award. The court therefore struck out the application and vacated the earlier injunctive orders.
Court Disposition
application struck out; injunctive orders vacated; costs to respondents
Orders
- The application is struck out.
- The earlier orders of injunction issued on 17th February 2014 are vacated.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISCELLANEOUS CIVIL APPL. NO. 68 OF 2002
JULIUS MORKONG CHEMTAI ….....…..................................... PLAINTIFF
VERSUS
LEWIS BOIYO................................................................1ST RESPONDENT
REUBEN KIBELET........................................................ 2ND RESPONDENT
SILAS KIBELET …........................................................ 3RD RESPONDENT
GEOFFREY KIBELET.................................................... 4TH RESPONDENT
RULING
1. The Applicant JULIUS MORKONG CHEMTAI has moved the court by a notice of motion dated 13th February 2014 and filed in court on the same date seeking the following orders;
i. That the application be certified as urgent for reasons to be recorded at the hearing hereof and the application be heard exparte in the first instance.
ii. That the Respondents by themselves, their workers, servants agents and whomsoever otherwise be restrained from entering into, demarcating, cultivating, planting any crops, leasing or building any structures thereon or from interfering in any other manner with land parcel number ELGON/NAMORIO/208 pending the hearing and determination of this application inter partes and pending the hearing and determination of this suit.
iii. That an order be issued directing the District Land Registrar and the District Surveyor Bungoma Mt. Elgon Districts to visit land parcel no. ELGON/NAMORIO/208 and subdivide the same for the Applicant to get his two acres in terms of the decree issued in Kimilili land case no. 9 of 2001.
iv. That costs of this application be in the cause.
2. The motion is premised on the grounds on its face and the affidavit sworn by the Applicant. The Applicant’s complaint is that the Respondents have entered his land without any lawful authority and planted eucalyptus trees covering the whole parcel. He also wants title for his two acres curved out of the suit land and given to him.
3. The application is opposed. The Respondents filed a replying affidavit sworn by the Silas Kibelet Simotwo on his behalf and on behalf of the 1st , 2nd and 3rd . The replying affidavit raises inter alia in paragraph 7 thereof that this court is functus officio since the judicial review application was dismissed on 17th July 2002. Secondly that if the Applicant wishes to execute the decree of the tribunal then he ought to have filed his application in Kimilili Resident Magistrate land case no. 9 of 2001.
4. There are other issues raised in the replying affidavit but which I will not venture into as the two grounds mentioned above (par. 3) will determine this application without going into its merits or otherwise. Mr. Were advocate for the Respondents in his submissions told court that the judicial review application was dismissed on 17th July 2002. This fact is not disputed by Mr. Ateya for the Applicant.
5. I have perused the record and confirmed it is true that application brought for judicial review was dismissed on 17th July 2002 for non-prosecution by the ex parte applicant. This was a miscellaneous application seeking judicial review orders. The Applicant was an interested party in those proceedings and was therefore aware of the dismissal order. This applicant even proceeded to file his bill which was taxed at Kshs. 40,000/= by consent.
6. It follows therefore that once the application was dismissed, the entire suit was closed and no further proceedings can be undertaken unless and until the orders of dismissal have been set aside. Mr. Ateya submitted that this court has power to effect the rights of the Applicant. I presume this line of submission is in light of prayer no. (iii) of the application. The Applicant still has doors open to use to realize his rights, one of which is to have sought that prayer before the court which adopted the award of the Tribunal. Certainly this court cannot assist the Applicant in the manner that it has come before it. See case law Misc. app. no. 98 of 2009 R vs. clerk, County Council of Meru [2012] e KLR and section 8 (3) of the Law Reform Act.
I therefore find the court is functus officio and is unable to hear and determine the present application. The application is hereby ordered struck off. The earlier orders of injunction that were issued on 17th February 2014 be and is hereby vacated. The costs of the application awarded to the Respondent.
Dated, Signed and Delivered in open court this 22nd day of May 2014
A. OMOLLO
JUDGE.