[2013] KEHC 5864 (KLR)
The court found that the application for leave to apply for orders of certiorari was directed at the decision of the Kakamega Provincial Land Disputes Tribunal, which was adopted on 18th August 2011. Since the application was made within six months of this date, it was within the statutory limitation period...
Source-derived case information.
- Citation
- [2013] KEHC 5864 (KLR)
- Parties
- Applicant: Republic; Respondent: The Chairman, Western Provincial Land Disputes Tribunal; Applicant: Julius Wekulo; Applicant: Vincent Wafula; Defendant: Tecla Chemwa; Defendant: Teresa Makokha
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 123 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review and Setting Aside of Previous Dismissal Order
- Outcome
- Application for review allowed; previous dismissal order set aside; leave to commence judicial review granted.
- Legal Topics
- Judicial Review, Leave to Apply for Certiorari, Error on Face of Record, Limitation Periods, Land Disputes Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Chairman, Western Provincial Land Disputes Tribunal
Respondent
Julius Wekulo
Applicant
Vincent Wafula
Applicant
Tecla Chemwa
Defendant
Teresa Makokha
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Review and Setting Aside of Previous Dismissal Order
Legal Issues
- 1 Whether there was an error apparent on the face of the record regarding the computation of time for filing the application for leave to apply for judicial review orders.
- 2 Whether the application for leave to apply for orders of certiorari was filed within the statutory six-month period as required by law.
- 3 Whether the previous order dismissing the application for leave should be reviewed and set aside.
Ratio Decidendi
The court found that the application for leave to apply for orders of certiorari was directed at the decision of the Kakamega Provincial Land Disputes Tribunal, which was adopted on 18th August 2011. Since the application was made within six months of this date, it was within the statutory limitation period prescribed by Order 53 of the Civil Procedure Rules. The previous dismissal of the application was based on an error in the computation of time, as it incorrectly considered the date of the District Land Disputes Tribunal's award, which was not the subject of the application. The court therefore reviewed and set aside the previous order dismissing the application and granted the...
Court Disposition
Application for review allowed; previous dismissal order set aside; leave to commence judicial review granted.
Orders
- The order dismissing the application for leave to apply for orders of certiorari is set aside.
- The applicants are granted leave to commence judicial review proceedings.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HC MISC. APPL. NO. 123 OF 2011
IN THE MATTER OF :
AN APPLICATION BY JULIUS WEKULO AND VINCENT WAFULA FOR LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW.
IN THE MATTER OF:
THE LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990
BETWEEN
REPUBLIC.................................................................................................................... APPLICANT
VERSUS
THE CHAIRMAN, WESTERN PROVINCIAL LAND DISPUTES TRIBUNAL......RESPONDENT
EXPARTE
JULIUS WEKULO.
VINCENT WAFULA .............................................................................. EXPARTE APPLICANTS
VERSUS
TECLA CHEMWA
TERESA MAKOKHA …...........................................................................INTERESTED PARTIES
RULING
The exparte applicants have moved this court under section 3, 3A and 80 of the Civil Procedure Act and Order 45 (1) and (2) of the Civil Procedure Rules seeking for;
(a). The honourable court be pleased to set aside, review and,or discharge the orders made on 14th March 2012.
The application is premised on the ground that there is an error apparent on the face of the record and several other grounds on the face of the application. The application is also supported by the affidavit of Julius Wekulo sworn on the 13th June 2012.
The summary of the order sought to be reviewed is contained in the annexed ruling of Justice A. Muchelule. The judge dismissed the application for leave to apply for Judicial review orders on the basis that the order sought to be quashed was over 6 months old.
The decision of the district tribunal was adopted on 10th May 2007 while the award of the provincial tribunal was adopted on 18th August 2011. In the application for leave to apply for orders of certiorari, the applicant sought to quash the decision of the Kakamega provincial Land Disputes Tribunal only.
In this event then the application was made within the six (6) months window as required by order 53 of the Civil Procedure Rules. It is therefore clear there was an error apparent on the face of the record in terms of computation of the time.
However if the leave was to challenge the decision of the District Tribunal then it is without time contrary to the law. The interested party's submissions is based on the award of the District Land Disputes Tribunal which is not being challenged by the exparte applicant.
For the reasons given above, I agree to review the orders of the learned Justice A. Muchelule and set aside the order dismissing the application for leave to apply for orders certiorari. In place I grant the applicant leave to commence judicial review proceedings. The applicant to file substantive motion within 21 days from today. The leave do operate as stay. Each party to bear its costs.
RULING SIGNED, DELIVERED AND READ in open court this 12th day of June 2013.
A. OMOLLO
JUDGE.