[2013] KEHC 1534 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

JUDICIAL REVIEW APPEAL NO 6 OF 2012

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW FOR AN ORDER OF CERTIORARI

IN THE MATTER OF BUSIA PRINCIPAL MAGISTRATE’S CIVIL CASE NO 139 OF 2006 AND 329 OF 2010

IN THE MATTER OF L.R O. BUKHAYO/BUYOFU/2296

BETWEEN

JUSTUS MAKHANDE ITOLI…………………………...……..1ST APPLICANT

CONSOLATA AUMA IRUKANI……….…………...…………2ND APPLICANT

AND

LOICE ALILI OMBOTO……………………….........………1ST RESPONDENT

ALBERT ORUMA MULAKU………………...……......……2ND RESPONDENT

KURONYA AUCTIONEERS……………………......…...….3RD RESPONDENT

THE PRINCIPAL MAGISTRATE’S COURT AT BUSIA…..4TH RESPONDENT

JUDGMENT

Justus Makhande Itoli and Consolata Auma Irukani, hereinafter referred to as 1st and 2nd Applicant, filed the notice of motion dated 3/2/2012 through M/s Obura – Obwatinya & Co. Advocates for;

An order of Certiorari to remove proceedings and/or any other order emerging from Busia PMCC No. 139 of 2006 and 329 of 2010 to this court and quashing them.

That costs be provided for.

The application is based on the five grounds, (a) to (e), on the face of the application and the supporting affidavit sworn by the 1st Applicant on 3/2/2012 and the annextures thereto.

The application is opposed by Albert Oruma Mulaku the 2nd Respondent, who filed a replying affidavit sworn on 18/4/2012 through Ms Bogonko, Otanga & Co. Advocates.

Ms Wanyama & Co. Advocates for Loice Alili Omboto, the 1st Respondent filed a notice of preliminary objection dated 8/5/2012 raising three grounds.

When Counsel for the three parties who have filed papers in the matter appeared before the court on 28/11/2012, they consented that both the application and preliminary objection be dealt with together through filing of written submissions. The Applicants submission dated 22/2/2013, were filed on the same date while those of 1st Respondent dated 3/6/2013 were filed on 10/7/2013 and those of the 2nd Respondent dated 15/3/2013 on 18/3/2013.

PLAINTIFF’S SUBMISSIONS

That following the 1st Applicants failure to transfer to 1st Respondent two acres of land out of Bukhayo/Buyofu/227, the latter sued the former in Busia PMCC No. 139 of 2006 for an order of specific performance or alternatively, refund of kshs. 125,000/= with interest and costs. The 1st Respondent was successful and subsequently the court issued attachment orders against the 1st Applicant’s land Bukhayo/Buyofu/2296. The auction of the land was advertised by Kuronya Auctioneers in the Saturday Nation Newspaper of 14th February 2009.

The 1st Applicant submits that the auction never took place as the 1st Applicant made arrangements with the 2nd Respondent who paid Kshs. 109866/90 through bankers cheque to the Auctioneers in exchange of 3 acres out of the land.

That the 2nd Respondent colluded with the 3rd Respondent and had receipt for the kshs. 109866/90 issued to him allegedly for the purchase of the land in the auction.

That the 1st Applicant was made to sign court papers and transfer of land documents while he had Counsel on record. That he later learnt the Land had been transferred to the 2nd Respondent.

That the 2nd Respondent later filed Busia PMCC No. 329 of 2010 against the 1st Applicant and though the latter had filed a defence, it was subsequently struck out and judgment entered.

That the 1st Applicant never appeared before the land control board for consent to transfer the land to the 2nd Respondent.

1ST RESPONDENT’S SUBMISSIONS

That the Applicants application is defective as the proceedings and orders that the court is being asked to quash were not annexted to the application.

That even if the court were to find execution process was wanting, the Trial Court proceedings should not be quashed as they are not annexed.

That the application offends order 53 Rule 2 as it was not brought within six months of the proceedings or orders sought to be quashed.

That the application being based on complaints on the execution procedure, should have been taken before the Trial Court in accordance with section 34 of CPA and not through a Judicial Review application which deals with only the process.

That the Applicants should have moved the Trial Court to vary or set aside the consents he is dissatisfied with.

2ND RESPONDENTS SUBMISSIONS

That the proceedings the Applicants seeks to have quashed were made by a court of competent jurisdiction and the Applicants were represented in the hearings and hence Judicial Review remedy is not available.

That the application was filed outside the six months period prescribed under order 53 Rule 2 of the C.P.R.

That the 2nd Respondent participated in the auction of Bukhayo/Buyofu/2296 conducted by Kuronya Auctioneers, and emerged the winner at kshs. 139866/90 which he paid on 7th April 2009.

That thereafter he paid 1st Applicant kshs 100,133/50 on humanitarian grounds to enable him relocate from the land after which the 1st Applicant executed all the documents enabling the 2nd Respondent secure the title to the land.

That the 1st Applicant participated in the two cases and has not applied to set aside the sale of the land by public auction before the Trial Court or appealed against the order of vacant possession.

That as the 1st Applicant has not shown that the trial courts acted in excess of their jurisdiction or that he was denied the right to be heard the application should be rejected as Judicial Review is concerned with reviewing the process and not the merits of the decision.

The 2nd Respondent referred the Court to the Case of Nicholas Muchora & 5 Others – Vs – SRM (Milimani Commercial Courts) 2011 eKLR where it was held:

“Where an applicant is aggrieved by a decision of a Trial Court because of alleged wrong interpretation or misapprehension of Law, that person out to file an appeal against the decision and not a judicial review application”.

He also referred to the case of Gerald Wanjohi & Another Vs The District Forest Office, Koibatek District (2011) eKLR where it was held that:

“An order of Certiorari will lie from the High Court to quash a decision of a Lower Court or Tribunal if the decision making body acts in excess or without jurisdiction, or if it acts in breach of rules of natural justice”.

Having carefully considered the contents of the pleadings herein the supporting affidavit, further and replying affidavits, grounds on the notice of preliminary objection and the submissions by the three Counsel for Applicants, 1st and 2nd Respondent, the court finds as follows;

That the Exparte Applicant’s main issue is the execution proceedings, specifically the attachment and sale of his land to certify the decree. The attachment order was issued by the lower court and there is nothing to suggest the Exparte Applicant challenged the attachment proceedings or obtained stay orders when he allegedly entered into negotiations with 2nd Respondent. There is therefore nothing to show that the Court that issued the attachment orders acted beyond its powers or that the Exparte Applicant who was evidently represented by Counsel was not heard. Further none of the parties have challenged the auction before the Lower Court and/or appealed on any of the orders of the Lower Court in both Busia PMCC No. 139 of 2006 and 329 of 2010.

That having found as in (1) above the court further finds there is no evidence presented before this court to suggest that the Lower Court acted without jurisdiction in issuing the orders in relation to the cases before it between the parties. Had such evidence been availed the court would have considered issuing the order of certiorari if moved in accordance with order 53 of the Civil Procedure Rules.

That if indeed the Exparte Applicant did not willingly or at all execute the transfer documents as alleged, the Court would have expected that he would have lodged an appropriate complaint with the relevant government offices including the police, for investigations to be carried out with a view of identifying the culprits for possible prosecution. There is nothing to show such action was taken.

That the auction was advertised by the 3rd Respondent in February 2009, which means the relevant court orders had been issued before that date. The Exparte Applicants’ Chamber summons dated 30th December 2011 and filed in court on 4/5/2012 was clearly filed outside the six months period from the date of the proceedings and orders in Busia PMCC No. 139 of 2006 and 329 of 2010 sought to be quashed were made. The Applicants knew this as they alluded to it in their application for leave. This clearly shows the application was filed in contravention of Order 53 Rule 2 of Civil Procedure Rules which requires leave to be obtained within six months of the making of the order or proceedings sought to be quashed. Leave was applied for and granted in Busia H.C Misc Application no 2 of 2012. In granting the leave Chitembwe J. made the following observation;

“I have perused the application herein. The same has no supporting documents to verify the truthfulness of what is being alleged. It is a bare application. The alleged civil suit nos. 139 of 2006 and 329/2010 have not been annexed in form of pleadings or rulings to convince the court as to what transpired in those proceedings.

I will reluctantly grant leave………………….”.

The 1st Respondent Counsel has in the notice of preliminary objection dated 8/5/2012 taken issue with both the application for leave and substantive application terming them incompetent in view of the provisions of order 53 Rule 2 of the Civil Procedure Rules. This court has no doubt that had the materials or facts that were presented after the leave was granted before the court dealing with the application for leave, the orders of 23/1/2012 would have been different and most probably leave would have been declined. The Court of Appeal in the case of Njuguna Vs Minister for Agriculture [2000] IEA 184 Observed that the appropriate procedure for challenging of leave which has already been granted is to apply under the inherent jurisdiction of the Court, to the Judge who granted leave to set it aside. No such application was filed but Counsel for the 1st Interested Party raised it in his preliminary objection and this court has jurisdiction to entertain the preliminary objection and make a determination on matters of Law.

5. That the proceedings in Busia PMCC No. 139 of 2006 and 329 of 2010 have not been annexed to the affidavit filed with the application for leave. It is the affidavit that is required to contain evidence to verify the grounds on the statement as provided for under order 53 Rule 1(2) of the Civil Procedure Rules. Under Rule 7(1) of the said order, an Applicant cannot question the validity of an order or proceedings without providing a copy of the said order or proceedings before the hearing of the application. The Applicants herein cannot therefore question the validity of the orders and proceedings in Busia PMCC No 139 of 2006 and 329 of 2010 whose copies they did not provide. The affidavit filed with the notice of motion only annexed the order of 5/4/2011 marked JMI – 15 and copy of notice to show cause dated 2/8/2011 marked JMI – 16 and both issued in Busia PMCC No. 329 of 2010. Had copies of the proceedings and orders in both Busia PMCC No 139 of 2006 and 329 of 2010 been availed, the court would have better appreciated their contents. The application for leave was therefore filed outside the six months period and hence in contravention of order 53 Rule 2 of Civil Procedure Rules which is in the same terms with Section 9(3) of the Law Reform Act. The Court of Appeal in Cases Kimanzi Mboo Vs David Mulwa, C.A.C No. 233 of 1996 and Wilson Osolo vs John Ojiambo & Another (1996) eKLR held that the period of six months within which leave to file substantive application for certiorari orders should be made from the date of the order or action complained of cannot be extended. The preliminary objection raised by Counsel for the 1st Respondent is therefore upheld and the leave granted set aside. The substantive application therefore is left without leave and consequently must fail.

6. That the Exparte Applicant’s complaints could have been addressed by either moving the Trial Court to set aside or review its orders or an appeal in the High Court. None of the two options were taken but the Judicial Review process was commenced outside the six months stipulated under section 9(3) of Law Reform Act and order 53 Rule 2 of Civil Procedure Rules. The Applicants appear to hold the misguided view that where time to file an appeal has lapsed, a party would have the option of filing a Judicial Review application even after a period of six months has passed. This unfortunately is not so and shown in the two court appeal decisions cited above.

Having found as above, the Court finds the Exparte Applicants application dated 3/2/2012 is without merit and must fail. The preliminary objection by 1st Respondent’s Counsel is upheld. The application is therefore struck out and dismissed with costs.

S. M. KIBUNJA,

JUDGE.

DATED, SIGNED AND DELIVERED ON 6TH DAY OF NOVEMBER, 2013

IN THE PRESENCE OF;

JUDGE