[2017] KEHC 1923 (KLR)
The court found that the application to cite the Land Registrar for contempt was incompetent and misplaced within the context of the judicial review proceedings. The Land Registrar was not a party to the original judicial review, and the proper forum for enforcement of the boundary rectification order was the...
Source-derived case information.
- Citation
- [2017] KEHC 1923 (KLR)
- Parties
- Applicant: Ireri Cirigu; Respondent: Chairman Embu District Land Tribunal; Respondent: Resident Magistrate Embu Law Courts; Respondent: Njoka Karugu; Respondent: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 30 of 2011
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Contempt Application
- Outcome
- application dismissed
- Judges
- FN Muchemi
- Legal Topics
- Contempt of Court, Enforcement of Orders, Land Disputes Tribunal, Boundary Rectification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ireri Cirigu
Applicant
Chairman Embu District Land Tribunal
Respondent
Resident Magistrate Embu Law Courts
Respondent
Njoka Karugu
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Contempt Application
Legal Issues
- 1 Whether the Land Registrar Embu can be cited for contempt for failing to comply with a court order issued on 24/09/2012.
- 2 Whether the application for contempt is competent and properly before the court in the context of judicial review proceedings.
- 3 Whether the Land Registrar was a party to the original judicial review proceedings and thus subject to contempt proceedings.
Ratio Decidendi
The court found that the application to cite the Land Registrar for contempt was incompetent and misplaced within the context of the judicial review proceedings. The Land Registrar was not a party to the original judicial review, and the proper forum for enforcement of the boundary rectification order was the magistrate's court that adopted the tribunal award. The court emphasized that after delivering its ruling on the judicial review, it was functus officio and could not entertain further applications unrelated to the judicial review issues. The application was therefore dismissed as an abuse of process and for lack of merit.
Court Disposition
application dismissed
Orders
- The application dated 24/08/2017 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
JUDICIAL REVIEW MISC. APPLICATION NO. 30 OF 2011
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
AND
IN THE MATTER OF AN AWARD BY THE EMBU DISTRICT LAND TRIBUNAL AWARD NO. 24 OF 2009 READ TO THE PARTIES ON 8THDECEMBER 2010 AND ADOPTED AS JUDGMENT OF THE COURT ON 30THMARCH 2011
REPUBLIC
VERSUS
THE CHAIRMAN EMBU DISTRICT LAND TRIBUNAL……...1ST RESPONDENT
THE RESIDENT MAGISTRATE EMBU LAW COURTS…......2ND RESPONDENT
NJOKA KARUGO……………………………………........…..3RD RESPONDENT
HON. ATTORNEY GENERAL.....................................................1ST THIRD PARTY
THE LAND REGISTRAR…………………….……....................2ND THIRD PARTY
IRERI CIRIGU.........................................................................EXPARTE APPLICANT
R U L I N G
1. This is ruling on the application dated 24/08/2017 seeking for orders that:-
(a) The Land Registrar Embu be cited for contempt of court for disobeying the orders issued by this court on 24/09/2012.
(b) That the Land Registrar be compelled to comply with the orders in default of which he should be committed to civil jail for a period that this court deems fit.
2. The grounds supporting the application are that this court issued an order on 24/09/2012 directing the Land Registrar Embu to correct boundaries between L.R. Ngandori/Nguvio/568 and Ngadori/Nguvio/569. The applicant has since followed up the execution of the order with the Land Registrar to no avail. He then instructed his advocate to write to the Land Registrar. He later received a letter inviting him to attend the rectification of the boundary exercise on the land on 23/08/2017. The Land Registrar failed to attend on that day without giving any reason which prompted the filing of this application.
3. The respondent filed grounds of opposition on 3/10/2017 through Senior State Counsel Joy Maina of the Attorney General’s office. It was stated that the application is incompetent, bad in law and an abuse of the due process of the court. The Land Registrar was never a party to the Judicial Review proceedings and cannot therefore be cited for contempt. The procedure for filing an application for contempt has not been complied with and the application lacks merit and should be dismissed.
4. During the hearing the applicant asked the court to rely on his pleadings in determining the application. Mr. Munene for the Attorney General relied on the grounds of opposition and further argued that the order of 24/09/2012 did not direct the Land Registrar to rectify boundary of the said parcels of land. The order in question was quashed in this Judicial Review Application No. 30 of 2011.
5. The applicant obtained an order in Embu District Land Tribunal Award No. 24 of 2009 on 8/12/2010 and adopted as judgment of the court on 30/03/2011. The tribunal awarded costs of KShs.149,510/= to the defendant Njoka Karugu payable by the applicant herein Ireri Cirigu. The orders were challenged in this Judicial Review Application before Ong’udi, J. The court quashed the order for costs and ruled that the order for correction of boundaries should stand because the tribunal has jurisdiction to deal with the matter under Section 3(1) of the repealed Land Dispute Act.
6. The respondent claims that the application is bad in law, incompetent and an abuse of the due process of the court and further that the procedure in filing an application for contempt was not followed. The respondent did not state or explain which procedure was violated. It is noted that the applicant in this case was not represented by an advocate. However, Article 159 of the Constitution requires that courts do not decide matters with due regard to technicalities. The concern of the court should be focused on the contents of the application and not the form. The court will proceed to deal with other issues related to the alleged incompetency.
7. It was also argued that the Land Registrar was not a party to the Judicial Review proceedings and that should not be cited for contempt. The order for rectification of boundaries was issued by the Land Disputes Tribunal and confirmed as an order of the court by the magistrate’s court. As I have stated earlier, the said order is still valid and enforceable. The applicant ought to apply for enforcement of the order before the magistrate court Embu LDT Award No. 39 of 2010.
8. The subject of these judicial review proceedings was to quash the order awarding cost by the tribunal. After the court delivered its ruling in the matter, it became functus officio and cannot continue entertaining applications that are not related to judicial review.
9. For the foregoing reasons, I find that the application is misplaced in this judicial review matter and it is therefore incompetent and bad in law.
10. The application stands dismissed with no orders to cost.
11. It is hereby so ordered.
DATED, DELIVERED AND SIGNED AT EMBU THIS 15TH DAY OF NOVEMBER, 2017.
F. MUCHEMI
JUDGE
In the presence of:-
Mr. Munene Wanjohi for the respondent
Applicant present