[2005] KEHC 853 (KLR)
The court held that Order LIII proceedings are a special jurisdiction promulgated under section 9 of the Law Reform Act, and the provisions of the Civil Procedure Act and its rules do not apply to such proceedings. Therefore, the applicant's attempt to amend the motion for judicial review by invoking Order VIA rules...
Source-derived case information.
- Citation
- [2005] KEHC 853 (KLR)
- Parties
- Applicant: Ndiwa Namunyu; Respondent: The Hon. Attorney General (for and on behalf of the Sitikho Land Disputes Tribunal); Interested Party: Samuel Samita Namunyu
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 112 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; summons struck out
- Legal Topics
- Judicial Review Procedure, Amendment of Pleadings, Land Disputes Tribunal Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndiwa Namunyu
Applicant
The Hon. Attorney General (for and on behalf of the Sitikho Land Disputes Tribunal)
Respondent
Samuel Samita Namunyu
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a motion for judicial review under Order LIII can be amended using the Civil Procedure Rules.
- 2 Whether the court has inherent jurisdiction to allow such an amendment in judicial review proceedings.
Ratio Decidendi
The court held that Order LIII proceedings are a special jurisdiction promulgated under section 9 of the Law Reform Act, and the provisions of the Civil Procedure Act and its rules do not apply to such proceedings. Therefore, the applicant's attempt to amend the motion for judicial review by invoking Order VIA rules 3 and 4 of the Civil Procedure Rules was incompetent and improperly premised. The court found that the only applicable provisions are those under the Law Reform Act or Order LIII itself, and in their absence, the court's inherent jurisdiction may be invoked, but not to circumvent express statutory or procedural requirements. As such, the preliminary objection was upheld and...
Court Disposition
preliminary objection upheld; summons struck out
Orders
- The preliminary objection dated 1st November 2004 is upheld.
- The summons dated 3rd June 2004 is struck out as incompetent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Misc Civ Appli 112 of 2002
IN THE MATTER OF AN APPLICATION BY NDIWA NAMUNYU FOR AN
ORDER OF CERTIORARI
AND
IN THE MATTER OF THE LAND DISPUTES TRIBUNALS ACT NO.18 OF 1990
BETWEEN
REPUBLIC…………………………………………………………...……APPLICANT
VERSUS
THE HON. ATTORNEY GENERAL (FOR AND ON BEHALF OF THE SITIKHO
LAND DISPUTES TRIBUNAL)…………………..…………………..RESPONDENT
AND
SAMUEL SAMITA NAMUNYU……………………………….INTRESTED PARTY
Exparte
NDIWA NAMUNYU
RULING
Ndiwa Namuyu, the applicant herein filed a summons under Order VIA rules 3 and 4 of the Civil Procedure Rules seeking to amend the motion dated 4th November 2002. The summons was served upon the interested party who in turn opposed the motion by filing a preliminary point of law, which had to be disposed of first before considering the merits of the summons.
Before considering the arguments for and against the preliminary points raised let me set out the background of the nature of dispute which is before this Court.
In the year 2001 Samuel Simiyu Namunyu, the interested party herein filed a claim against the applicant over L.R.NO.NDIVISI/MUCHI/339 before the Sitikho Land disputes Tribunal in which he claimed for the recovery of 12 acres. The Land disputes Tribunal heard that dispute and finally made an award on 22nd October 2001 in which the interested party was given 12 acres. The award was adopted on 15th October 2002. Being aggrieved by the decision the applicant filed the motion dated 4th November 2002 under Order LIII rule 3 of the Civil Procedure whereby he applied for an order of certiorari to bring into this Court the aforesaid award for quashing. The applicant raised various grounds in the motion. The applicant has now realized some inadequancy of the motion. He has invoked the provisions of Order VI A rules 3 and 4 of the Civil Procedure rules as the basis of the summons dated 3rd June 2004.
The subject matter of this ruling is the preliminary objection dated 1st November 2004. The main ground raised against the summons is that the motion cannot be amended by invoking the provisions of the Civil Procedure Act and the rules therein. The applicant’s advocate was of the view that this Court can invoke its inherent jurisdiction to allow the amendment because the objection raised was a mere irregularity which was basically technical.
It is not denied that Order LIII is a special jurisdiction promulgated under section 9 of the Law Reform Act. The provisions of the Civil Procedure Act and the rules therein do not apply. Consequently, the summons before this court is incompetent because it is improperly premised. The provisions of the Law Reform Act or in the alternative Order LIII of the Civil Procedure Rules can be cited in matters dealing with judicial Review Proceedings. In the absence of any provisions then the inherent jurisdiction of this court may be invoked.
In the end, I am satisfied that the preliminary objection has merit. It is upheld with a consequential order that the summons dated 3rd June 2004 is ordered struck out with costs to the interested party.
Dated and delivered this 16th day of Nove. 2005.
J. K. SERGON
JUDGE
In the presence of Mr. Khakula for the applicant and Were for the interested party.