[2015] KEHC 5366 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

MISC. APPLICATION NO. 134 OF 2008

REPUBLIC OF KENYA………..……….……….................................................……….…….…………..APPLICANT

VERSUS

THE CHAIRMAN MACHAKOS DISTRICTLAND DISPUTES TRIBUNAL……...…….……...1ST RESPONDENT

MACHAKOS CHIEF MAGISTRATE…….…….………........................................................……2ND RESPONDENT

AND

MWANZWII KIMUYU KISANI…………….............................................................….…………INTERESTED PATRY

AND

KIMUYU MAVULUTI NTHIWA

JOSEPH KYAMBI MUTHUNGU.………….…...................................................................................………..EXPARTE APPLICANTS

R U L I N G

The applicant filed an application dated2nd July, 2008 pursuant to the then provisions of Order LIII Rule 1 and 2 of the Civil Procedure Rules seeking leave to apply for orders of certiorari to remove and/or quash the findings and the award of Machakos District Disputes Tribunal dated 27th June, 2002 in Criminal Case No. 139 of 2001 and read to the interested parties and the applicant in Chief Magistrate’s Court on the 13th June, 2006 in Miscellaneous Application No. 51 of2006 and that the leave do operate as stay of execution.

Subsequently, the applicants filed another application dated the 9th September, 2008 seeking an order to be allowed to prosecute the application. The latter application was listed for hearing thrice before Lenaola J. in the year 2009. It was, however, not heard.

On the 17th October ,2012, Mutinda D. M. for the applicant and A. B. Makau holding brief for Mr. Kimeu for the interested party appeared before Dulu J. who gave directions that parties do file written submissions. Pursuant to the order Parties herein filed submissions.

Consequently written submissions filed by both the applicant and interested party were in respect of the application dated 2nd July, 2008. I have duly considered the same.

Order LIII rule (1) (2) of the then Civil Procedure Rules provides thus:

“[1] No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.

[2] An application for such leave as aforesaid shall be madeex parteto a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit.”

The application filed herein is premised on grounds that: The Machakos District tribunal sitting in its case No. 139of 2001 acted in excess of its powers; lots of errors and mistakes were made by the tribunal and there was misconduct during hearing.

The application is accompanied by a statement of facts which sets out the relief sought and the grounds upon which the relief is founded. Also filed is an affidavit verifying facts and a supporting affidavit where it is averred by the 1st applicant that he did not file the application within time because of Legal Notice No. 3000of2006 which was challenged in court. Subsequently it was degazetted paving way for several review applications being filed in court.

In his submission D. M. Mutinda counsel for the applicant states that the tribunal exceeded its jurisdiction; all claims concerning title to land are within exclusive jurisdiction of the High Court; the minister’s judgment should have been final. Therefore, there was need for the court to issue prohibition orders against the Land Registrar from executing and/or in any way implementing the award.

Procedurally the application seeking leave is made exparte to a judge in chambers. Per the order dated 17th September, 2009of Lenaola J., it is the application dated 9th September, 2008that ought to have been served but not the chamber application dated 2nd July, 2008. That notwithstanding leave herein is being sought two (2) years after the award of the tribunal was read to the parties and adopted as judgment thereof. No appeal was filed which would require the court to adjourn any application as envisaged by Section 9 (3) of the Law Reform Act.

In an endeavor to explain why there was a delay in filing of the application the 1st applicant states in his affidavit that he did not file his application due to the Legal Notice No. 3000 of 2006 which was subsequently degazetted. He was duty bound to divulge the information on the Legal Notice when it was degazetted.

From the foregoing it is apparent that the application for leave was filed out of time. The applicant failed to comply with the mandatory requirement of Order LIII rule 2 of the Civil Procedure Rules. In the premises the application fails. Accordingly, it is dismissed.

DATED, SIGNEDand DELIVERED at MACHAKOS this 23RDday of APRIL, 2015.

L.N MUTENDE

JUDGE