[2023] KEELC 19020 (KLR)

Karimi v District Land Adjudication Officer Ruiri/Rwarera Adjudication Section & 2 others; Marete (Interested Party) (Judicial Review Miscellaneous Application E006 of 2023) [2023] KEELC 19020 (KLR) (19 July 2023) (Ruling)

Neutral citation: [2023] KEELC 19020 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Judicial Review Miscellaneous Application E006 of 2023

CK Nzili, J

July 19, 2023

IN THE MATTER OF AN APPLICATION FOR LEAVE TO INSTITUTE JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF CERTIORARI

AND

IN ACCORDANCE WITH ORDER 53 OF THE CIVIL PROCEDURE RULES 2010

AND

IN THE MATTER OF THE DECISION OF THE MINISTER IN CASE NO.255 OF 2019 WITH RESPECT TO THE PARCEL OF LAND KNOWN AS PARCEL NO.3047 RUIRI/RWARERA/ADJUDICATION SECTION

Between

Gladys Karimi

Exparte Applicant

and

District Land Adjudication Officer Ruiri/Rwarera Adjudication Section

1st Respondent

Cabinet Secretary For Lands

2nd Respondent

The Hon Attorney General

3rd Respondent

and

Margaret Nyoroka Marete

Interested Party

Ruling

1. By an application dated April 17, 2023, the court is asked to grant leave to the exparte applicant to institute judicial review proceedings of certiorarito remove into this court and quash the 2nd respondent's decision made on October 19, 2022 in Case No 255 of 2019, over parcel number 3047 Ruiri/Rwarera adjudication section, the Minister's Appeal No 255 of 2019 be referred back to be determined per the law and leave granted to act as a stay of the decision described above regarding the suit land. The application is accompanied by a statutory statement dated April 17, 2023 and a verifying affidavit by Gladys Karimi sworn on April 17, 2023, in which she has attached the Minister's appeal ground and the decision made as GK "1" & "2", respectively.

2. Briefly, it is the applicant's averment that her mother, the late Zipporah Kinaitore, was allocated the suit land by the Minister of Lands in 1969, measuring approximately 24. 5 acres which she had occupied until 2015 when she discovered that it had been subdivided into two portions namely parcel No’s 303 and 3047. It was averred that an objection was raised regarding the alleged subdivision, which was dismissed. She, therefore, preferred the minister's appeal.

3. The exparte applicant avers that the Minister, in hearing the appeal failed to consider that the interested party had never utilized the suit land and that her confirmation letter preceded the purported subdivision in 2015.

4. The court's jurisdiction at the exparte stage is essentially to give an applicant entry into the judicial arena so that he can vindicate his right or claim. The purpose of the leave is firstly to eliminate any vexatious, frivolous, or hopeless applications at an early stage and secondly to confirm that the applicant has satisfied that there is a case fit for further consideration.

5. Leave allows the courts to stop any busybodies and prevents their time from being wasted on trivial complaints on administrative errors so that public bodies or public officers might be free to execute administrative action without being bogged down by such trivialities as held in Republic v County Council of Kwale and another Exparte Kondo and 57 others (1996) eKLR.

6. At the leave stage, a court does not delve deeply into the merits or arguments of the parties but makes a cursory perusal of the evidence before it decides whether the applicant requires the doors of justice to be opened for him. SeeUwe Meixner & another v AG (2005) eKLR. It filters out frivolous applicants, thus the discretion to do so must be exercised judiciously, and the test to apply is whether an applicant has an arguable case.

7. In this application, the decisions sought to be quashed were issued on October 19, 2022. This application was filed on April 18, 2023, which was within the statutory six months under order 53 of theCivil Procedure Rules. The court has not been told if the decision has been implemented. Leave granted shall act as stay for one year only. The applicant shall file an undertaking for damages for Kshs 1 million alongside the notice of motion within 21 days from the date hereof.

Orders accordingly.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERUON THIS 19THDAY OF JULY 2023In presence ofC.A John PaulGachohi for Mutuma for the applicantHON. CK NZILIELC JUDGEJR MISC E006 OF 2023 - RULING 0