[2012] KEHC 1820 (KLR)
The court held that although the Land Disputes Tribunal lacked jurisdiction to determine disputes concerning ownership of registered land, the ex-parte applicant's chamber application for leave to apply for certiorari was filed after the expiry of the statutory six-month period. Under Order 53 rule 2 of the Civil...
Source-derived case information.
- Citation
- [2012] KEHC 1820 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Kanduyi Land Disputes Tribunal; Interested Party: Pius Nabangi Sikwembe; Ex Parte Applicant: Martin Nabangi Mulongo
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 57 of 2009
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- motion struck out as a nullity
- Judges
- AO Muchelule
- Legal Topics
- Judicial Review, Certiorari, 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
Pius Nabangi Sikwembe
Interested Party
Martin Nabangi Mulongo
Ex Parte Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to determine disputes relating to ownership of registered land.
- 2 Whether the application for leave to apply for orders of certiorari was filed within the statutory six-month period.
- 3 Whether the motion for judicial review is competent if leave was obtained out of time.
Ratio Decidendi
The court held that although the Land Disputes Tribunal lacked jurisdiction to determine disputes concerning ownership of registered land, the ex-parte applicant's chamber application for leave to apply for certiorari was filed after the expiry of the statutory six-month period. Under Order 53 rule 2 of the Civil Procedure Rules, such an application is time-barred and a nullity. Consequently, the leave granted was itself a nullity, and the substantive motion based on that leave was also a nullity. The court therefore struck out the motion with costs.
Court Disposition
motion struck out as a nullity
Orders
- The motion is struck out as a nullity.
- Costs awarded to the respondent and interested party.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISCELLANEOUS CIVIL APPLICATION 57 OF 2009
IN THE MATTER OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION BY MARTIN NABANGI MULONGOFOR ORDERS OF JUDICIAL REVIEW
AND
IN THE MATTER OF THE LAND DISPUTES TRIBUNAL ACT NO.18 OF 1990
AND
REPUBLIC..................................................................................................APPLICANT
~VERSUS~
THE CHAIRMAN KANDUYI LAND DISPUTES TRIBUNAL................RESPONDENT
PIUS NABANGI SIKWEMBE......................................................INTERESTED PARTY
AND
MARTIN NABANGI MULONGO..............................................EX-PARTE APPLICANT
JUDGMENT
There is no dispute that land parcel no.E.Bukusu/S.Kanduyi/8482 measuring about 3 Hectares was since 30/10/00 registered in the name of the ex-parte Applicant. The Interested Party went to the Kanduyi Land Disputes Tribunal (Respondent) which ordered that the ex-parteApplicant gives him one acre of the parcel. The award was dated 23/1/2001. On 5/3/2009 the ex-parte Applicant filed a chamber application and obtained leave to file judicial review motion in the nature of Certiorarito remove into this court and quash the award which was on 9/1/2009 adopted as the judgment of the Chief Magistrate’s Court at Bungoma. The motion was filed on 13/7/2009 and opposed by the Interested Party.
There is no doubt that the Respondent did not have jurisdiction under section 3 (1) of the Land disputes Tribunal Act no.18 of 1990 to arbitrate in a dispute relating to ownership of registered land (Beatrice M’Marete v. Republic and Others, Civil Appeal no.259 of 2000 at Nyeri). However, the chamber application for leave to apply for orders of Certiorariwas made after the expiry of 6 months following the award and was therefore a nullity (Municipal Council of Mombasa v. Republic and Another, Civil Appeal no.185 of 2001). An application for leave to apply for orders of Certiorariis barred by Order 53 rule 2 of the Civil Procedure Rules if it is brought 6 months from the date of the decision sought to be quashed. It follows that the present motion is also a nullity as the leave on which it was based was a nullity. It is consequentially struck out with costs.
Dated, signed and delivered at Bungoma this 9th day of October, 2012.
A.O. MUCHELULE
JUDGE