[2012] KEHC 3174 (KLR)
The application was dismissed because it was incompetent: it sought orders against the Senior Resident Magistrate’s Court, Vihiga, which was not a party to the proceedings. The proper procedure for challenging or enforcing the tribunal award was not followed. The applicant should have either appealed the...
Source-derived case information.
- Citation
- [2012] KEHC 3174 (KLR)
- Parties
- Applicant: Keresi Ingahinzu Misigo; Respondent: Hezekiah Jaseya Saisi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 32 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Compel Magistrate's Court to Sign Decree
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Enforcement of Decrees, Land Disputes Tribunal Awards, Jurisdiction of Magistrates Courts, Judicial Review Thresholds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Keresi Ingahinzu Misigo
Applicant
Hezekiah Jaseya Saisi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Compel Magistrate's Court to Sign Decree
Legal Issues
- 1 Whether the High Court can compel the Senior Resident Magistrate’s Court, Vihiga, to sign a decree in respect of a Land Disputes Tribunal award.
- 2 Whether the application is competent given that the magistrate’s court is not a party to the proceedings.
- 3 Whether the proper procedure for challenging or enforcing the tribunal award was followed.
Ratio Decidendi
The application was dismissed because it was incompetent: it sought orders against the Senior Resident Magistrate’s Court, Vihiga, which was not a party to the proceedings. The proper procedure for challenging or enforcing the tribunal award was not followed. The applicant should have either appealed the magistrate’s ruling or instituted judicial review proceedings to invoke the supervisory jurisdiction of the High Court. The magistrate’s role under Section 7(2) of the Land Disputes Act is limited to entering judgment in accordance with the tribunal’s decision and issuing a decree; the court cannot interpret the award’s legality or enforceability. Since the applicant did not pursue the...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS APPLICATION 32 OF 2010
KERESI INGAHINZU MISIGO ................................................. APPLICANT
VERSUS
HEZEKIAH JASEYA SAISI ................................................... RESPONDENT
RULING
The application dated 2nd June, 2010 is made under Order 50 rule 1. The application seeks orders that the Senior Resident Magistrate’s Court, Vihiga, be directed to sign the decree in respect of Vihiga SRMCC No. 149/05.
The applicant, KERESI INGAHIZU MISIGO in his affidavit in support deponed that the Vihiga Land Disputes Tribunal Award No. 8 of 2006 was made in her favour. That the same was not challenged by way of appeal. That the award was filed at the SRM’s Court, Vihiga vide SRMCC No. 149/05 and the same was adopted as a judgment of the court but the magistrate thereafter refused to sign the extracted decree. The Applicant’s prayer is that the SRMS’s court, Vihiga be compelled to sign the decree.
The annexed draft decree reads as follows:-
“CLAIM FOR:
1. Disputed portion of land forming part of L.R. No. KAKAMEGA/MBALE/987;
This matter coming up for Ruling upon the Applicant’s application dated the 8th day of November, 2006:
IT IS HEREBY ORDERED:
1. That the disputed portion of land forming part of L.R. No. Kakamega/Mbale/987 be and is hereby awarded to the Applicant herein.
2. That each party to bear its own costs.”
The respondent, HEZEKIAH JASEYA SAISI opposed the application through his replying affidavit sworn on 30th September, 2010. The respondent’s contention is that the purported award of the Vihiga Land Disputes Tribunal was vague, defective and incapable of being executed.
The applicant was represented by Kundu Advocate while the respondent was represented by MS Osodo Advocate. The parties filed written submissions. I have duly considered the pleadings and the written submissions.
Section 7 (2) of the Land Disputes Act sets out the role of the magistrate as follows:-
“The court shall enter judgment in accordance with the decision of the Tribunal and upon judgment being entered, a decree shall issue and shall be enforceable in the manner provided for under the Civil Procedure Act.”
The magistrate’s court can therefore not purport to interpret the award as to its legality, enforceability or otherwise. It was up to the dissatisfied party to appeal to the Provincial Appeals Committee and thereafter to the High Court or institute Judicial Review proceedings.
The Vihiga SRM’s Court is not a party to the proceedings herein. The motion is incompetent as it seeks orders against persons who are not parties to the application.
The application was brought under Order 50 rule 1 Civil Procedure Rules. It is not an application for judicial review proceedings to make the SRM,s Court Vihiga amenable to the supervisory jurisdiction of this court.
It is also observed that the magistrate made a ruling dated 9. 12. 09 in respect of the decree in question. It seems no appeal was preferred against the said ruling.
With the foregoing, the application is dismissed with costs to the respondents.
Delivered, dated and signed at Kakamega in open court this 28th day of June, 2012
B. THURANIRA JADEN
J U D G E