[2008] KEHC 3465 (KLR)
The court held that the decision of the Cherengany Land Disputes Tribunal ceased to exist as a separate entity once it was adopted as a judgment of the court on 21/1/2008. As such, there was no longer an award in existence that could be quashed by an order of certiorari. The application was also found to be wrongly...
Source-derived case information.
- Citation
- [2008] KEHC 3465 (KLR)
- Parties
- Applicant: Republic; Respondent: Cherengany Land Disputes Tribunal comprising of 4 others; Respondent: Resident Magistrate – Iten Court; Respondent: Kimisoi Chemwetich & Others; Applicant: Kiplagat Chemwetich
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- ? 21 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to Apply for Certiorari
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Judicial Review, Certiorari, Land Disputes Tribunal Awards, Adoption of Awards, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Cherengany Land Disputes Tribunal comprising of 4 others
Respondent
Resident Magistrate – Iten Court
Respondent
Kimisoi Chemwetich & Others
Respondent
Kiplagat Chemwetich
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to Apply for Certiorari
Legal Issues
- 1 Whether there exists a decision amenable to judicial review by certiorari after adoption of a tribunal award as a judgment of the court.
- 2 Whether the applicant has established a prima facie case for grant of leave to apply for certiorari.
Ratio Decidendi
The court held that the decision of the Cherengany Land Disputes Tribunal ceased to exist as a separate entity once it was adopted as a judgment of the court on 21/1/2008. As such, there was no longer an award in existence that could be quashed by an order of certiorari. The application was also found to be wrongly framed, failing to heed binding precedent. Consequently, the applicant failed to demonstrate the existence of a decision amenable to judicial review or to establish a prima facie case. The court therefore dismissed the application for leave to apply for certiorari.
Court Disposition
application dismissed
Orders
- The application for leave to apply for an order of certiorari is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
MISC.APP. 21 OF 2008
REPUBLIC =================================== APPLICANT
V E R S U S
CHERENGANY L.D.T. Comprising of 4 Others ======1ST RESPONDENT
RESIDENT MAGISTRATE – ITEN COURT ====== 2ND RESPONDENT
KIMISOI CHEMWETICH & OTHERS =========== 3RD RESPONDENT
EX-PARTE – KIPLAGAT CHEMWETICH
R U L I N G
The applicant, Kiplagat Chemwetich, made an exparte application to this court on 5/3/2008 seeking under order LIII Rule I leave to apply for an order of certiorari to remove into this court for quashing the decision of Cherengany Land Disputes Tribunal which was read and adopted as a judgment of the court on 6th February 2008 in Iten Senior Resident Magistrate’s Court L.D.T Case No.7 of 2007.
The court in considering an application of this nature is not called upon to go into the matter in depth. The principles to be applied are that if on the material made available to the court finds that there is prima facie evidence of an arguable case, the court will normally grant the leave sought. To be able to do this, the applicant must first show that there is in existence a decision that is amenable to the remedy of judicial review.
In this case, the decision of Cherengany Land Disputes Tribunal ceased to exist on 21/1/2008 when it was adopted as a judgment of the court.
There is not now in being an award which the court can quash by an order of certiorari following the adoption of the award as a judgment of the court pursuant to the provisions of section 7(2) of the Land Disputes Tribunals Act 1990.
I observe that the application was wrongly framed, as it does not heed the decisions in Mohamed Ahmed r. R (1957) E.A 323 and Farmers Bus V. Transport Licencing (1959) E.A 779.
In the result, it is my finding that the applicant has failed to show existence in law of a decision that the court can quash by an order of certiorari and consequently has failed to establish that there is prima facie evidence of an arguable case.
In the circumstances, I have no alternative but to dismiss the application which I hereby do.
Delivered at Kitale on 11/3/2008.
G.B.M KARIUKI
JUDGE
11/3/2008