[2009] KEHC 931 (KLR)
The court found that the magistrate's court acted irregularly by striking out the tribunal award and directing parties to the High Court, rather than adopting the award or allowing for review or appeal as provided by law. The subsequent attempt to file the same award in a different magistrate's court case was deemed...
Source-derived case information.
- Citation
- [2009] KEHC 931 (KLR)
- Parties
- Applicant: Kitur Arap Soi; Applicant: Tapnyonye Arap Soi; Respondent: Chairman, Bomet Land Disputes Tribunal; Respondent: The Principal Magistrate Court, Kericho; Respondent: Tapsabei Temugen
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- ? 9 of 2009
- Procedural Posture
- Miscellaneous Application / Application for Leave for Judicial Review (certiorari)
- Outcome
- Leave granted for judicial review (certiorari) proceedings.
- Legal Topics
- Judicial Review, Certiorari, Res Judicata, Tribunal Awards, Magistrates Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kitur Arap Soi
Applicant
Tapnyonye Arap Soi
Applicant
Chairman, Bomet Land Disputes Tribunal
Respondent
The Principal Magistrate Court, Kericho
Respondent
Tapsabei Temugen
Respondent
Procedural Posture
Miscellaneous Application / Application for Leave for Judicial Review (certiorari)
Legal Issues
- 1 Whether leave should be granted to commence judicial review proceedings for certiorari against the adoption of the tribunal award by the magistrate's court.
- 2 Whether the subsequent filing of the same award in a different magistrate's court case is res judicata.
- 3 Whether the Land Disputes Tribunal exceeded its mandate in making the award.
Ratio Decidendi
The court found that the magistrate's court acted irregularly by striking out the tribunal award and directing parties to the High Court, rather than adopting the award or allowing for review or appeal as provided by law. The subsequent attempt to file the same award in a different magistrate's court case was deemed res judicata, as the matter had already been determined. The applicants demonstrated an arguable case that the tribunal may have exceeded its mandate, justifying the grant of leave to commence judicial review proceedings for certiorari. The court therefore granted leave to the applicants to file a substantive motion for judicial review within 21 days, with specific directions...
Court Disposition
Leave granted for judicial review (certiorari) proceedings.
Orders
- Leave be and is hereby granted to the ex parte applicants to file judicial review proceedings for certiorari.
- A notice of motion must be filed within twenty one (21) days.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Misc Civil Appli 9 of 2009
1. Judicial Review
a. Application for leave to seeking Judicial Review proceedings for certiorari.
b. Land Dispute Tribunal court of Bomet heard and determined a dispute on 25th July, 2007.
c. That miscellaneous civil application 79/06 award adopted and read at magistrate’s court on 28. 9.06.
d. Award struck out (illegally) (J.K. Ng’eno) magistrate and parties advised to go to High Court.
e. Respondent filed same award on 22nd June, 2009 in magistrates court case 50/09 instead of asking orders of J.K. Ng’eno be set aside as having been irregularly issued.
f. That the 2nd application in file Miscellaneous 50/09 is declared as Res Judicata.
2. Held
a. That leave be and is hereby granted to bring Judicial Review proceedings.
b. That there be a Notice of motion filed within twenty one (21) days and eight clear days
between service and date of hearing.
3. Case Law – Nil
4. Advocate
E.M. Orina advocate instructed by M/S E.M. Orina & Co. advocates for the exparte applicants – present.
BETWEEN
KITUR ARAP SOI……………………………...1ST APPLICANT
TAPNYONYE ARAP SOI …………………...2ND APPLICANT
VERSUS
CHAIRMAN
BOMET LAND DISPUTES TRIBUNAL ……..1ST RESPONDENT
THE PRINCIPAL MAGISTRATE COURT,
KERICHO …………………………………2ND RESPONDENT
TAPSABEI TEMUGEN ……………………3RD RESPONDENT
RULING NO. 1
I: Procedure
1. This application concerns a land disputes tribunal.
2. The said tribunal situated in Bomet determined the dispute between two parties on the 21st July, 2007. The award was concluded and filed according to law in the magistrates court in misc. civil application 79/06. The magistrate read the award on 28th September, 2006 that ordered the eviction of one party.
3. Instead of the magistrate now adopting the ward the magistrate struck out the award(J.K. Ng’eno) and asked parties to proceed to the High court. This was of course illegal and irregular. What the party aggrieved should have done was to apply for the review and setting aside of those orders, failure to then appeal to the High Court.
4. Instead the aggrieved party wanted for three years then filed the same award dated 25th July, 2007 to court under misc. case 50/09.
5. The exparte applicant came to court seeking orders for leave to apply for certiorari to quash the reading of the award and adopting the same by the magistrate as the same is Res Judicata in any event.
6. The award given exceeded the mandate the tribunal were given.
II:Findings
7. Leave be and is hereby granted to the exparte applicant to file Judicial Review proceeding of certiorari.
8. That a notice of motion be filed within twenty one (21) days. That there must be eight clear days between the date of service and the date of hearing.
9. The costs be in the cause.
DATEDthis 31st day of July, 2009 atKERICHO
M.A. ANG’AWA
JUDGE
Advocates
E.M. Orina advocate instructed by M/S E.M. Orina & Co. advocates for the exparte applicants – present.