[2012] KEHC 3114 (KLR)
The court held that the application for judicial review orders of certiorari and prohibition was incompetent because leave was not sought within six months of the date of the award as required by Order 53 rule 2 of the Civil Procedure Rules and section 9(3) of the Law Reform Act. The failure to comply with the...
Source-derived case information.
- Citation
- [2012] KEHC 3114 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Kanduyi Land Disputes Tribunal; Respondent: Senior Resident Magistrate Bungoma Law Courts; Interested Party: Ritah Nekesa Simiyu; Applicant: Benjamin Kisaka Muyala
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 68 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Judicial Review Orders of Certiorari and Prohibition
- Outcome
- motion dismissed and/or struck out with costs
- Judges
- AO Muchelule
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Tribunal Jurisdiction, Registered Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman Kanduyi Land Disputes Tribunal
Respondent
Senior Resident Magistrate Bungoma Law Courts
Respondent
Ritah Nekesa Simiyu
Interested Party
Benjamin Kisaka Muyala
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Judicial Review Orders of Certiorari and Prohibition
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction under section 3(1) of the Land Disputes Tribunal Act to determine ownership of registered land.
- 2 Whether the proceedings and award of the Tribunal were a nullity for lack of jurisdiction.
- 3 Whether the application for certiorari was incompetent for being filed outside the six-month limitation period under Order 53 rule 2 of the Civil Procedure Rules and section 9(3) of the Law Reform Act.
Ratio Decidendi
The court held that the application for judicial review orders of certiorari and prohibition was incompetent because leave was not sought within six months of the date of the award as required by Order 53 rule 2 of the Civil Procedure Rules and section 9(3) of the Law Reform Act. The failure to comply with the statutory time limit deprived the court of jurisdiction to entertain the motion, regardless of the substantive merits regarding the Tribunal's jurisdiction or the alleged procedural irregularities. Consequently, the motion was dismissed and/or struck out with costs.
Court Disposition
motion dismissed and/or struck out with costs
Orders
- The notice of motion for judicial review orders of certiorari and prohibition is dismissed and/or struck out with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
MISCELLANEOUS CIVIL APPLICATION 68 OF 2008
IN THE MATTER OF AN APPLICATION BY BENJAMIN KISAKA MUYALA FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF THE LAND DISPUTES TRIBUNAL ACT NO.18 OF 1990 AND LAND PARCEL NO.E.BUKUSU/S.KANDUYI/659
AND
IN THE MATTER OF AN AWARD OF THE CHAIRMAN KANDUYI LAND DISPUTES TRIBUNAL IN DISPUTE
NO.19 OF 1996 GIVEN ON 5/9/1996 AND ADOPTED BY THE BUNGOMA SENIOR RESIDENT MAGISTRATE
AS JUDGMENT OF THE COURT ON 31/7/2002 IN MISC. CIVIL APPLICATION NO.14 OF 1997
BETWEEN
REPUBLIC...............................................................................................................................................APPLICANT
~VRS~
1. THE CHAIRMAN KANDUYI LAND DISPUTES TRIBUNAL.......................................1ST RESPONDENT
2. THE SENIOR RESIDENT MAGISTRATE BUNGOMA LAW COURTS....................2ND RESPONDENT
AND
RITAH NEKESA SIMIYU.......................................................................................................INTERESTED PARTY
EX-PARTE
BENJAMIN KISAKA MUYALA
RULING
This notice of motion dated 27/3/2003 (as amended on 31/12/2009) was for Judicial Review orders of Certiorari and Prohibition. The ex-parte Applicant asked that the award of the Kanduyi Land Disputes Tribunal (1st Respondent) delivered in Dispute no.19 of 1996 on 5/9/1996 and the proceedings of the Senior Resident Magistrate at Bungoma (2nd Respondent) to adopt the award of the judgment of the court be removed into this court by order of Certiorari and quashed. It was also sought that an order of Prohibition does issue to prohibit the 2nd Respondent from effecting the award and judgment. The grounds were that the entire proceedings and award of the 1st Respondent were a nullity as it did not have jurisdiction under section 3 (1) of the Land Disputes Tribunal Act no.18 of 1990 to determine an issue relating to the ownership of registered land. It was alleged that a Succession Court had issued letters of administration in respect of the estate of the deceased Makokha Mutayi to one John Wafula Makokha and yet the Tribunal had purported to distribute the estate, a function that did not belong to it. Lastly, that the ex-parte Applicant was not made aware that the Interested Party had gone to the 1st Respondent and filed a complaint against him in regard to land parcel no.East Bukusu/South Kanduyi/659 and an award given, yet he had occupied 8 acres of the suit land for over 40 years. The suit land was consequent to the succession case registered in the name of John Wafula Makokha. It is the land that the 1st Respondent ordered to be subdivided and shared out.
The award that is complained of was handed down on 5/9/1996. Under Order 53 rule 2 of the Civil Procedure Rules and section 9 (3) of the Law Reform Act (Cap. 26) the leave was not sought inside six months after the date of the award. A motion founded on leave sought after the six months is incompetent and the court had no jurisdiction to grant the Judicial Review order of Certiorari (Ako v. Special District Commissioner Kisumu & Another [1989] KLR 163). The motion is consequently dismissed and/or struck out with costs.
Dated, signed and delivered at Bungoma this 10th day of July 2012.
A.O. MUCHELULE
JUDGE