[2013] KEHC 3958 (KLR)
The court found that the applicant had established an arguable case that the Keiyo South District Land Disputes Tribunal may have acted without jurisdiction in determining the dispute over land parcel Elgeyo Marakwet/Turesia/366. As such, the applicant was entitled to leave to file a substantive motion for judicial...
Source-derived case information.
- Citation
- [2013] KEHC 3958 (KLR)
- Parties
- Applicant: Jeremiah Chesang alias Jeremiah Kiptarus Chesang; Respondent: Keiyo South District Land Disputes Tribunal; Respondent: Senior Principal Magistrate's Court at Iten; Respondent: Keiyo Marakwet/Keiyo South District Land Registrar; Respondent: Keiyo/Marakwet/Keiyo South District Surveyors; Respondent: Paul Kiplagat
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 4 of 2012
- Procedural Posture
- Judicial Review / Ruling on Leave Application and Stay
- Outcome
- Leave granted to apply for judicial review; stay of execution of award and decree granted pending determination of substantive motion.
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Land Title Disputes, Certiorari, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Chesang alias Jeremiah Kiptarus Chesang
Applicant
Keiyo South District Land Disputes Tribunal
Respondent
Senior Principal Magistrate's Court at Iten
Respondent
Keiyo Marakwet/Keiyo South District Land Registrar
Respondent
Keiyo/Marakwet/Keiyo South District Surveyors
Respondent
Paul Kiplagat
Respondent
Procedural Posture
Judicial Review / Ruling on Leave Application and Stay
Legal Issues
- 1 Whether the Keiyo South District Land Disputes Tribunal had jurisdiction to determine the dispute over land parcel Elgeyo Marakwet/Turesia/366.
- 2 Whether the proceedings and award of the Tribunal and the subsequent decree of the Iten Senior Principal Magistrate's Court are null and void for want of jurisdiction.
- 3 Whether leave should be granted to apply for orders of certiorari and whether such leave should operate as a stay of execution.
Ratio Decidendi
The court found that the applicant had established an arguable case that the Keiyo South District Land Disputes Tribunal may have acted without jurisdiction in determining the dispute over land parcel Elgeyo Marakwet/Turesia/366. As such, the applicant was entitled to leave to file a substantive motion for judicial review seeking orders of certiorari to quash the Tribunal's proceedings and award, as well as the decree of the Iten Senior Principal Magistrate's Court. The court further held that it was appropriate to grant a stay of execution of the award and decree pending the determination of the substantive motion, to preserve the subject matter and prevent prejudice to the applicant.
Court Disposition
Leave granted to apply for judicial review; stay of execution of award and decree granted pending determination of substantive motion.
Orders
- Leave is granted to the applicant to file the substantive motion for judicial review within 21 days from the date hereof.
- The substantive motion to be served within 15 days of filing.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
Judicial Review 4 of 2012 [if gte mso 9]><xml>
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IN THE MATTER OF:-
AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF
CERTIORARI AND PROHIBITATION
AND
IN THE MATTER OF:-
ORDER 53 (APPLICATIONS FOR JUDICIAL REVIEW)
OF THE CIVIL PROCEFURE RULES, 2010 AND SECTION 8 AND 9 OF THE
LAW REFORM ACT
BETWEEN
REPUBLIC...............................................................................................APPLICANT
VS
1. THE KEIYO SOUTH DISTRICT LAND DISPUTES TRIBUNAL
2. THE SENIOR PRINCIPAL MAGISTRATES COURT AT ITE
3. THE KEIYO MARAKWET/KEIYO SOUTH DISTRICT LAND REGISTRAR
4. THE KEIYO/MARAKWET/KEIYO SOUTH DISTRICTSURVEYORS...................................................................FIRST RESPONDENT
PAUL KIPLAGAT...................................................................................................................................SECOND RESPONDENT
EX-PARTE
JEREMIAH CHESANG ALIAS
JEREMIAH KIPTARUS CHESANG
RULING
Before me is the ex-parte application dated 28 March 2013 filed by Jeremiah Chesang alias Jeremiah Kiptarus Chesang (the applicant). It is an application brought under the provisions of Order 53 Rule 1 (1) and (2) of the Civil Procedure Rules, 2010. The applicant is seeking leave to apply for an order of certiorari to move into this court and quash the proceedings and award of the Keiyo South District Land Disputes Tribunal Case No. 3 of 2011 which was adopted as the order of the court in Land Disputes Tribunal Case No. 18 of 2011 in the Senior Principal Magistrate's court at Iten. The applicant also seeks to have the grant of leave operate as a stay of proceedings and of the award and decree of the Iten court until the substantive determination of the substantive application.
It is the case of the applicant that he is the registered proprietor of the land parcel Elgeyo Marakwet/ Turesia/366 and he has exhibited the certificate of title to the said land in his supporting affidavit indicating that he is the first registered proprietor. A dispute arose between himself and one Paul Kiplagat and the latter referred the matter to the Keiyo South Land Disputes Tribunal which heard the dispute on 5 October 2011 and rendered its decision on 11 November 2011. The award of the Tribunal was filed in the Iten Senior Principal Magistrate's Court and adopted as a judgement of the court on 1st March 2013. A decree was later issued.
It is this decree that the applicant wishes to quash inter alia on the grounds that the Tribunal had no jurisdiction to entertain the dispute and that the proceedings are null and void.
I have considered the application and I see no reason why I should not grant leave to the applicant to file the substantive motion for orders of certiorari. I therefore grant leave to the applicant to so file the substantive motion for judicial review. The said application to be filed within 21 days from the date hereof and be served within 15 days of filing. I also issue an order staying the execution of the subject award and decree of the Iten Senior Resident Magistrate's Court until the final determination of the substantive motion for judicial review.
The costs of this application shall be costs in the substantive motion.
It is so ordered.
DATED and DELIVERED THIS 2ND DAY OF MAY 2013
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT & LAND COURT AT ELDORET
Delivered in the presence of:
Mr. Y.M. Barasa advocate holding brief for Mr. Cheptarus of M/s J.K.C Cheptarus & Co. Advocates for the ex-parte applicant.
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