[2012] KEHC 1249 (KLR)
The court found that there were no proceedings or decisions of the Kakamega North Land Disputes Tribunal attached to the application, and therefore, an order of certiorari could not be issued as there was nothing to quash. Furthermore, the Land Disputes Tribunals Act No. 18 of 1990 had been repealed and the Tribunal...
Source-derived case information.
- Citation
- [2012] KEHC 1249 (KLR)
- Parties
- Applicant: Wilfrida Khasiala; Respondent: Chairman, Land Disputes Tribunal Kakamega North; Interested Party: Philip Chitelesi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 26 of 2010
- Procedural Posture
- Judicial Review / Ruling on Notice of Motion for Orders of Prohibition and Certiorari
- Outcome
- Application dismissed as overtaken by events; no orders granted.
- Legal Topics
- Judicial Review, Land Disputes Tribunal Jurisdiction, Certiorari, Prohibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfrida Khasiala
Applicant
Chairman, Land Disputes Tribunal Kakamega North
Respondent
Philip Chitelesi
Interested Party
Procedural Posture
Judicial Review / Ruling on Notice of Motion for Orders of Prohibition and Certiorari
Legal Issues
- 1 Whether an order of certiorari can be issued where there is no decision or proceedings of the Tribunal to quash.
- 2 Whether an order of prohibition can be granted against a Tribunal that has been abolished by repeal of the enabling statute.
Ratio Decidendi
The court found that there were no proceedings or decisions of the Kakamega North Land Disputes Tribunal attached to the application, and therefore, an order of certiorari could not be issued as there was nothing to quash. Furthermore, the Land Disputes Tribunals Act No. 18 of 1990 had been repealed and the Tribunal abolished, rendering the prayer for prohibition moot as there was no longer a Tribunal to prohibit. The application was thus overtaken by events, and no substantive orders could be granted.
Court Disposition
Application dismissed as overtaken by events; no orders granted.
Orders
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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REPUBLIC, EX-PARTE WILFRIDA KHASIALA........................................................................APPLICANT
V E R S U S
CHAIRMAN,LAND DISPUTES TRIBUNAL KAKAMEGA NORTH.....................................RESPONDENT
AND
PHILIP CHITELESI.......................................................................................................INTERESTED PARTY
R U L I N G
In the notice of motion dated 20th February 2010, the ex-parte applicant is seeking an order of prohibition and certiorari against the Kakamega North Land Disputes Tribunal in relation to plot number S.KABRAS/BUSHU/1306. Parties herein agreed to file written submissions.
From the submissions of both parties, it is evident that the Kakamega North Land Disputes Tribunal did not deliberate on the dispute. There are no proceedings and decision or order of the Tribunal attached to the application. That being the case, i will not belabour on the issue and do find that the order of certiorari is not available to the applicant. Such an order cannot be issued in a vaccum. There is nothing to be quashed.
On the other prayer for an order of prohibition, the pleadings show that the Kakamega North Land Disputes Tribunal had initiated land dispute case number 21 of 2009 between PHILIP MULUPI CHITELESI (claimant) and WILFRIDA KHASIALA and MARTIN SHIKUKU as the objectors. According to the objectors the suit property is registered in the names of ISAYA ODINYON KETI who is deceased and contend that no succession cause had been filed hence rendering the claim before the Tribunal as a non-starter. In view of the fact that the Land Disputes Tribunals Act No. 18 of 1990 has been repealed and the Environment and Land Court Act (No.19 of 2011) is in force, i do find that the prayer for prohibition has been overtaken by events. Currently there is no Tribunal to be prohibited from hearing or determining any dispute between the parties and the Tribunal shoud be aware that it has been abolished. However, i do find that the ex-parte applicant was within his right to pray for an order of prohibition as a claim had already been filed before the Tribunal.
In the end, I do find that the application herein has been overtaken by events. The Tribunal to be prohibited has been abolished as Act No. 18 of 1990 has been repealed. I do order that each party meet his/her own costs.
Delivered, dated and singed at Kakamega this 10th day of July 2012
SAID J. CHITEMBWE
J U D G E