[2007] KEHC 83 (KLR)
The court found that the application for leave to commence judicial review proceedings was filed within the statutory six-month period following the tribunal's decision. The applicant established an arguable case that the Land Disputes Tribunal may have exceeded its jurisdiction in awarding the land to the...
Source-derived case information.
- Citation
- [2007] KEHC 83 (KLR)
- Parties
- Applicant: Rebecca Nyamusi Mose; Respondent: Manasse Sabara Otwere; Respondent: Zablon Odari Otwere; Respondent: Joash Kivoni Otwere; Respondent: Migori District Land Disputes Tribunal
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 62 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Commence Judicial Review
- Outcome
- Leave granted to commence judicial review proceedings for orders of certiorari; leave to operate as stay.
- Legal Topics
- Judicial Review, Certiorari, Land Ownership Disputes, Tribunal Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rebecca Nyamusi Mose
Applicant
Manasse Sabara Otwere
Respondent
Zablon Odari Otwere
Respondent
Joash Kivoni Otwere
Respondent
Migori District Land Disputes Tribunal
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Commence Judicial Review
Legal Issues
- 1 Whether the Land Disputes Tribunal exceeded its jurisdiction in awarding the land to the respondents.
- 2 Whether the application for leave for orders of certiorari was filed within the statutory time limit.
Ratio Decidendi
The court found that the application for leave to commence judicial review proceedings was filed within the statutory six-month period following the tribunal's decision. The applicant established an arguable case that the Land Disputes Tribunal may have exceeded its jurisdiction in awarding the land to the respondents. Consequently, the court granted leave to apply for orders of certiorari to quash the tribunal's decision, and directed that such leave would operate as a stay of the tribunal's award pending the determination of the substantive motion.
Court Disposition
Leave granted to commence judicial review proceedings for orders of certiorari; leave to operate as stay.
Orders
- Leave is granted to the applicant to commence judicial review proceedings for orders of certiorari to quash the decision of the Migori District Land Disputes Tribunal.
- Such leave shall operate as a stay of the tribunal's decision.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc. Civ. Case 62 of 2007
IN THE MATTER OF REBECCA NYAMUSI MOSE .. APPLICANT
AND
MANASSE SABARA OTWERE …......…………. 1ST RESPONDENT
ZABLON ODARI OTWERE ……………….………. 2ND RESPONDET
JOASH KIVONI OTWERE ………………………. 3RD RESPONDENT
MIGORI DISTRICT LAND DISPUTES
TRIBUNAL ………………………………………. 4TH RESPONDENT
RULING
1: Background
1. Rebecca Nyamisi Mose inherited land parcel Kamagandio/Kayimach/82 from her late husband, Joseph Orina Onchieku. Her late husband purchased the land on 7 May 1988 in a public auction which was held against the original owner for debt due to a third party. The original owner was Juoto Otwere Sabana who spent a considerable time in court trying to reclaim this land. He passed away on 1 October 2001.
2. His children pursued the claim to this land. In the end they filed a Land Disputes Tribunal Court case at Migori which heard and determined the dispute that revolved around who was the rightful owner of the land. The tribunals award was that the whole parcel of land be given to the children of the original owner who are now adults.
II: Application for leave
3. Rebecca Nyamisi Mose filed his Judicial Review against the Land Disputes Tribunal seeking orders of certiorari to quash the decision of the tribunal as they had exceeded their jurisdiction. Her application is dated the 29 October 2007 and filed on 31 October 2007.
III: Leave
4. The application has been brought against a quasi judicial body. The orders of certiorari can only be applied for if it is brought within 6 months of when the decision was given. In his applciaiton the tribunal made their decision on 2 October 2007. This application is therefore filed within time required.
5. This court grants the application for leave to commence judicial review proceeding for orders of certiorari to quash the decision of the said tribunal having exceeded its powers and mandate. That such leave operates as a stay.
6. The application shall be made within 21 days by notice of motion to the High court. That there shall be at least eight clear days between the service of the notice of motion and the day named herein for hearing. The costs will be in the cause.
Dated this 8th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
E. Oduk of Oduk & Co. Advocates for the plaintiff /Ex parte/applicant- present`