[2012] KEHC 1827 (KLR)
The court found that the application for leave to apply for an order of certiorari was filed after the statutory six-month period had elapsed from the date of the Tribunal's decision. As a result, the order of certiorari could not issue. Additionally, the Appeals Tribunal and the subordinate court, whose decisions...
Source-derived case information.
- Citation
- [2012] KEHC 1827 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Webuye Land Disputes Tribunal; Interested Party: Beatrice Khaemba; Interested Party: Sylivester Muricho Muyoma; Applicant: Wilson Pepela Mukenya
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 130 of 2010
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- motion dismissed
- 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 Webuye Land Disputes Tribunal
Respondent
Beatrice Khaemba
Interested Party
Sylivester Muricho Muyoma
Interested Party
Wilson Pepela Mukenya
Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to determine disputes relating to registered land.
- 2 Whether the application for certiorari was filed within the statutory six-month period.
- 3 Whether the proper parties were joined in the application for judicial review.
Ratio Decidendi
The court found that the application for leave to apply for an order of certiorari was filed after the statutory six-month period had elapsed from the date of the Tribunal's decision. As a result, the order of certiorari could not issue. Additionally, the Appeals Tribunal and the subordinate court, whose decisions were sought to be quashed, were not made parties to the proceedings, rendering the application defective. Although the Tribunal lacked jurisdiction to determine disputes relating to registered land, the procedural defects were fatal to the applicant's case. The motion was therefore dismissed, with costs to be borne by the Interested Parties.
Court Disposition
motion dismissed
Orders
- The motion is dismissed.
- Costs to be borne by the Interested Parties.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Miscellaneous Civil Application 130 of 2010
IN THE MATTER OF THE LAW REFORM ACT CAP. 26 LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION BY WILSON PEPELA MUKENYA OF JUDICIAL REVIEW
AND
IN THE MATTER OF THE LAND DISPUTES TRIBUNAL ACT NO.18 OF 1990
AND
IN THE MATTER OF THE WEBUYE LAND DISPUTES TRIBUNAL DISPUTES NO.4 OF 2008
REPUBLIC.......................................................................................................................APPLICANT
~VRS~
THE CHAIRMAN WEBUYE LAND DISPUTETRIBUNAL.......................................RESPONDENT
AND
BEATRICE KHAEMBA.............................................................................1ST INTERESTED PARTY
SYLIVESTER MURICHOMUYOMA...................................................2NDINTERESTED PARTY
EX-PARTE
WILSON PEPELAMUKENYA.....................................................................................APPLICANT
JUDGMENT
Land parcel no.Bokoli/Bokoli/61 measuring 47 acres is registered in the joint names of the ex-parte Applicant and his brother Fred Nyongesa Mukenya. The Interested Parties went to the Webuye Land disputes Tribunal (the Respondent) to claim one acre and two acres, respectively, of the suit land. On 19/1/2009 the Respondent granted the claim. The ex-parte Applicant appealed to the Western Provincial Land disputes Appeals Tribunal which on 25/3/2010 dismissed the appeal. On 23/7/2010 the Chief Magistrate’s Court at Bungoma adopted the award as the judgment of the court. On 18/8/2010 the ex-parte Applicant filed a chamber application for leave to apply for an order of Certiorari to remove into this court and quash the decision of the Western Provincial Land Disputes Appeals Tribunal which was adopted by the subordinate court on the grounds that the Tribunal had acted in excess of jurisdiction as it had no power to hear and determine a dispute relating to registered land. Leave was granted and the present motion was filed. The Interested Parties defended the motion saying that the Tribunal had jurisdiction to hear and determine the dispute.
I have considered the motion which was filed through C.K. Areba & Co. Advocate, the submissions and the replying affidavits.
The chamber application and the motion were directed against the Chairman Webuye Land Disputes Tribunal as the Respondent, and yet the prayer was against the Western Provincial Land Disputes Appeal Tribunal and the court that adopted the award. The Appeal Tribunal simply dismissed the ex-parte Applicant’s appeal. The decision that was being adopted therefore belonged to the Respondent. That decision was rendered on 19/1/2009. It means that, the ex-parte Applicant came for leave after the statutory six (6) months period had elapsed. The order of Certiorari would therefore not issue. (Municipal Council of Mombasa v. Republic & Another, Civil Appeal no.185 of 2001). Secondly the Appeals Tribunal and the subordinate court were not made parties to the chamber application and motion.
It is forthese reasons that I dismiss the motion. Because the Respondent did not have the jurisdiction to entertain the claim, I ask that costs be borne by the Interested Parties.
Dated, signed and delivered at Bungoma this 9th day of October, 2012.
A.O. MUCHELULE
JUDGE