[2010] KEHC 2322 (KLR)
The court held that the preliminary objection raised by the interested parties was premature and misplaced, as it related to the substantive motion for judicial review, which was not yet before the court for hearing. The application currently before the court was for extension of time to file the substantive...
Source-derived case information.
- Citation
- [2010] KEHC 2322 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Matungu Land Disputes Tribunal; Interested Party: Hendrica Onyango; Interested Party: Rasmo Odongoa; Applicant: Muchelule Kutundu; Applicant: Hezron O. Wesonga
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 5 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Judicial Review, Preliminary Objection, Extension of Time, Land Disputes Tribunal, Filing Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman Matungu Land Disputes Tribunal
Respondent
Hendrica Onyango
Interested Party
Rasmo Odongoa
Interested Party
Muchelule Kutundu
Applicant
Hezron O. Wesonga
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection on the notice of motion being filed out of time is properly raised at this stage.
- 2 Whether there are proceedings or orders to be quashed in the absence of annexed proceedings.
Ratio Decidendi
The court held that the preliminary objection raised by the interested parties was premature and misplaced, as it related to the substantive motion for judicial review, which was not yet before the court for hearing. The application currently before the court was for extension of time to file the substantive application, and the issues raised in the preliminary objection could be properly addressed during the hearing of either the application for extension of time or the substantive motion itself. Accordingly, the preliminary objection was dismissed as it was not properly raised at this stage of the proceedings.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA Miscellaneous Civil Application 5 of 2008
IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW
A N D
IN THE MATTER OF L.R. N.WANGA/INDANGALASIA/406 & 808
IN THE MATTER OF MATUNGU LAND DISPUTES TRIBUNAL CASE NO. MTG/13/2008
A N D
IN THE MATTER OF THE KAKAMEGA CHIEF MAGISTRATE’S COURT MISC. AWARD NO.166 OF 2008
BETWEEN
REPUBLIC ………………………………………………………….. APPLICANT
V E R S U S
THE CHAIRMAN MATUNGU L. D. TRIBUNAL ….. RESPONDENT
A N D
1. HENDRICA ONYANGO
2. RASMO ODONGOA ……………….………… INTERESTED PARTIES
A N D
1. MUCHELULE KUTUNDU
2. HEZRON O. WESONGA ………………………………….. APPLICANTS
R U L I N G
On 10th November, 2008 the applicants were granted leave to file their substantive application for Judicial Review within 21 days. The application was filed on 17th December, 2008. On the same date, 17th December, 2008 the applicant filed an application seeking leave of the court to extend time to file the substantive application.
The Interested parties filed a notice of preliminary objection on 15th January, 2009. Mr. Wanyama, counsel for the interested parties submitted that the notice of motion was filed out of time. He further submitted that there are no proceedings or order to be quashed as no proceedings are annexed to the application.
Mr. Elung’ata, counsel for the applicants opposed the preliminary objection and submitted that the application that was to be heard was the one seeking leave to extend time and not the substantive motion for Judicial Review.
I do find that the issues raised in the preliminary objection can be raised during the hearing of both the application for extension of time or the substantive motion. The points raised in the preliminary objection relates mainly to the substantive motion that was not fixed for hearing. The interested parties should raise the points indicated in their preliminary objection during the hearing. The preliminary objection is misplaced at this instance and the same is dismissed. Costs shall be in the cause.
SAID J. CHITEMBWE
J U D G E
Delivered, dated and countersigned by the Hon. Justice Isaac Lenaola this 15th day
of April, 2010
ISAAC LENAOLA
J U D G E