[2013] KEHC 3661 (KLR)
The court cannot proceed to judgment until it is satisfied that all persons directly affected by the proceedings, specifically the interested parties, have been properly served in accordance with the law. The affidavit of service indicates that service was effected on the alleged legal representatives of the...
Source-derived case information.
- Citation
- [2013] KEHC 3661 (KLR)
- Parties
- Applicant: Humphrey Kigombe; Applicant: Rophus Mwamburi; Applicant: Wisdom Mwamburi; Respondent: Chief Land Registrar; Respondent: Director of Land Adjudication & Settlement; Respondent: District Land Registrar, Taita/Taveta District; Respondent: Honourable Minister for Lands and Settlement; Respondent: District Commissioner, Taita/Taveta; Respondent: District Land Adjudication and Settlement Officer, Taita/Taveta; Interested Party: Jacob Mwalukuku; Interested Party: Henry Mwanyumba
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 24 of 2008
- Procedural Posture
- Judicial Review / Pre Judgment; Order for Mention to Address Service on Interested Parties
- Outcome
- Judgment deferred; mention ordered to address service on interested parties.
- Legal Topics
- Judicial Review Procedure, Service of Process, Land Adjudication, Personal Representatives
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Humphrey Kigombe
Applicant
Rophus Mwamburi
Applicant
Wisdom Mwamburi
Applicant
Chief Land Registrar
Respondent
Director of Land Adjudication & Settlement
Respondent
District Land Registrar, Taita/Taveta District
Respondent
Honourable Minister for Lands and Settlement
Respondent
District Commissioner, Taita/Taveta
Respondent
District Land Adjudication and Settlement Officer, Taita/Taveta
Respondent
Jacob Mwalukuku
Interested Party
Henry Mwanyumba
Interested Party
Procedural Posture
Judicial Review / Pre Judgment; Order for Mention to Address Service on Interested Parties
Legal Issues
- 1 Whether all persons directly affected by the judicial review motion, specifically the interested parties, have been properly served as required by law.
- 2 Whether Jacob Mwalukuku is deceased and, if so, whether Benard Babu Nyambu and Joseph Mbanda Nyambu are his lawful personal representatives.
Ratio Decidendi
The court cannot proceed to judgment until it is satisfied that all persons directly affected by the proceedings, specifically the interested parties, have been properly served in accordance with the law. The affidavit of service indicates that service was effected on the alleged legal representatives of the deceased 1st interested party, but the court requires confirmation of the death of Jacob Mwalukuku and the status of Benard Babu Nyambu and Joseph Mbanda Nyambu as his personal representatives. This is necessary to ensure compliance with procedural requirements and to safeguard the rights of all affected parties. The court therefore orders a mention for parties to address this concern...
Court Disposition
Judgment deferred; mention ordered to address service on interested parties.
Orders
- Parties to move the court for a mention to address the issue of service on the interested parties, specifically confirmation of the death of Jacob Mwalukuku and the status of his alleged personal representatives.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Judicial Review 24 of 2008 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICAL REVIEW AND FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION
IN THE MATTER OF: THE CONSTITUTION OF KENYA
IN THE MATTER OF: THE LAND ADJUDICATION ACTCHAPTER 284 OF THE LAWS OF KENYA
IN THE MATTER OF: THE REGISTERED LAND ACT, CHAPTER200 OF THE LAWS OF KENYA
IN THE MATTER OF: THE REPUBLIC
VERSUS
THE CHIEF LAND REGISTRAR……………………...................…....…1ST RESPONDENT
THE DIRECTOR OF LAND ADJUDICTION &SETTLEMENT ….....….2ND RESPONDENT
THE DISTRICT LAND REGISTRAR,TAITA/TAVETA DISTRICT…....…3RD RESPONDENT
THE HONOURABLE MINISTERFOR LANDS AND SETTLEMENT ….4TH RESPONDENT
THE DISTRICT COMMISSIONERTAITA/TAVEA ……………….……..5TH RESPONDENT
THE DISTRICT LAND ADJUDICTIONAND SETTLEMENT OFFICER, TAITA/TAVETA
OFFICER, TAITA/TAVETA ……………………................................……..6TH RESPONDENT
EX PARTE
HUMPHREY KIGOMBE ………………………………........................……1ST APPLICANT
ROPHUS MWAMBURI ……………………………........................………2ND APPLICANT
WISDOM MWAMBURI …………………………..........................………..3RD APPLICANT
INTERESTED PARTIES
1. JACOB MWALUKUKU
2. HENRY MWANYUMBA
O R D E R
1)As parties may be aware I was redeployed to Busia High Court with effect from 1st March 2013. That re-deployment affected my work programme and for this reason I was unable to deliver judgment herein on 21st March 2013 as I had planned. I apologize to all involved. The parties will be further disappointed to learn that I am yet to prepare a judgment . This is the reason.
2)Both at the leave stage and on filing the substantive motion, the Applicants cited two persons as interested parties; 1) JACOB MWALUKUKU 2) HENRY MWANYUMBA. These are the people who are said to have unlawfully benefited from the decision sought to be impeached by these proceedings. Order LIII Rule 3(2) of the previous version of the Civil Procedure Rules (reproduced as order 53 Rule (3) of CPR, 2010) requires a substantive motion to be served on all persons directly affected. Jacob Mwalukuku and Henry Munyumba are such persons.
3)In the course of preparing the judgment I came across the Affidavit of service sworn by Rophus Mwamburi on 1st November 2004 in respect to service of the Notice of Motion on the interested parties. This is what he said in respect of the 1st Interested party.
“4. THAT I also served the document on the two sons of the deceased 1st interested party who are Bernard Babu Nyambu and Joseph Mbanda Nyambu and who are the legal representatives of the deceased. The said sons signed the back of the documents and dated them 3rd October 2004”.
Before proceeding any further this Court requires to satisfy itself that
i)Jacob Mwalukuku is indeed dead
ii)and if so that Benard Babu Nyumbu and
Joseph Mbanda Nyambu are personal
Representatives to his estate.
These is important because the two have never participated in theseproceedings notwithstanding evidence that they have been served on several occasions. The Court must satisfy itself that, as required by law, all persons directly affected have been served with the substantive motion.
4)I invite parties to move this court for a mention for purpose of addressing this concern.
F. TUIYOTT
J U D G E
DATED AND DELIVERED THIS 10TH DAY OF MAY, 2013
IN THE PRESENCE OF:
J U D G E
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