[2022] KEELC 3524 (KLR)

Kipatala v The Deputy County Commissioner, Baringo North & 6 others; Board Of Management, Barwessa Secondary School. (Interested Party) (Environment & Land Miscellaneous Case 19 of 2021) [2022] KEELC 3524 (KLR) (28 April 2022) (Ruling)

Neutral citation: [2022] KEELC 3524 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment & Land Miscellaneous Case 19 of 2021

EO Obaga, J

April 28, 2022

In the matter of an application of Thomas C.Kiptala for judicial review orders of Certiorari and prohibition and in the matter of the land adjudication act (cap 284) laws of Kenya and in the matter of plot no. 220 Barwessa “a” Adjudication section (Baringo North Sub-County

Between

Thomas C. Kipatala

Applicant

and

The Deputy County Commissioner, Baringo North

1st Respondent

The Cabinet Secretary For Lands, Housing & Urban Development..

2nd Respondent

The Director Of Land Adjudication And Settlement

3rd Respondent

The Land Registrar, Baringo Lands Registry

4th Respondent

The County Land Adjudication & Settlement Officer, Baringo.

5th Respondent

The Chief Land Registrar

6th Respondent

The Attorney General

7th Respondent

and

Board Of Management, Barwessa Secondary School.

Interested Party

Ruling

1. This is a ruling in respect of a chamber summons dated May 17, 2021. The ex-applicant filed this Chambers summons in which he sought leave to commence judicial review proceedings for orders of certiorari and prohibition. When the application was placed before the Judge, leave was granted to theex-parteapplicant to commence proceedings for judicial review. The court however directed the ex-parte applicant to serve the Chamber Summons for inter-parties hearing on prayers for stay and injunction as well as costs.

2. The ex-parte applicant contends that if stay is not granted, it will render the intended judicial review nugatory. Theex-parteapplicant argues that the process of issuance of title in favour of the interested party is in progress and that if the decision of the Minister is not stayed, the title will be issued and this will render the judicial review proceedings nugatory.

3. The ex-parte applicant’s application was opposed by the Respondents and interested party through a replying affidavit sworn on September 16, 2021. The respondents and interested party contend that the ex-parte applicant’s application is incompetent and it only consists of falsehoods which are calculated to attract sympathy of the court.

4. The parties were directed to canvass the application by way of written submissions. Theexparte applicant filed his submissions dated July 28, 2021. The respondents and interested party filed their submissions dated November 11, 2021.

5. I have considered theex-parte applicant’s application as well as the opposition to the same by the respondents and the interested party. I have also considered the submissions by the parties. From theex-parte applicant’s submissions, it is clear that the ex-parteapplicant abandoned the prayer for injunction and for a good cause as one cannot seek injuctive orders in judicial review proceedings. SeeCortec Mining Kenya limited v Cabinet Secretary Ministry of Mining & 8 others 2015 eKLR.

6. The only issue for determination is whether stay of the Minister’s decision ought to be granted. The law is clear that stay in judicial review proceedings is granted at the discretion of the court. Where the act sought to be stayed has been implemented, stay cannot be granted. In the instant case, the interested party in 2013 brought in surveyors to align boundary of the school and that of the ex-parte applicant. This was done. Proceedings regarding the boundary thereafter culminated in the appeal to the minister by the ex-parte applicant. The appeal was dismissed. As at the time of dismissal of the appeal to the minister, the interested party was already in possession of the disputed portion. There is therefore nothing to stay. There is no evidence that title in favour of the interested party is being processed. If the ex-parte applicant succeeds in his judicial review proceedings, the school will simply move out of the disputed portion which the ex-parteapplicant confirms in submissions that it is only being used by interested party which grazes its animals on the portion.

7. InR(H)vAshworth Special Hospital Authority(2003) IWLR 127, Dyson L. J held as follows:“I now turn to the third situation, which occurs where the decision has not only been made, but is has been carried out in full. At first sight, it seems nonsensical to speak of making an order that such a decision should be suspended. How can one say of a decision that has been fully implemented that it should cease to have effect? Once the decision has been implemented, it is a past event and it is impossible to suspend a piece of history.”

8. From the above analysis, it is clear that theex-parte applicant’s application is devoid of merit. The same is hereby dismissed with costs to the respondents and interested party. Theex-parteapplicant is directed to file the substantive motion for Judicial Review within 21 days from the date hereof. As this matter emanated from Baringo, this file is transferred to Iten ELC Court for hearing and disposal of the main motion.It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 28TH DAY OF APRIL, 2022E. OBAGAJUDGEIn the virtual presence of;Ms. Ruto for Mr. Odongo for RespondentMs. Cheruiyot for Mr. Mwaita for Ex-parte ApplicantCourt Assistant –AlbertE. OBAGAJUDGE28THAPRIL, 2022