[2008] KEHC 2614 (KLR)
The court held that once the award of the Saboti Land Disputes Tribunal was adopted as a judgment of the court, it ceased to exist as a separate decision and became a court judgment. As such, there was no longer a tribunal decision amenable to judicial review by certiorari. The application was therefore incompetent...
Source-derived case information.
- Citation
- [2008] KEHC 2614 (KLR)
- Parties
- Applicant: Republic; Respondent: Saboti Land Disputes Tribunal comprising of Christopher Saekwo & 7 others; Applicant: John Jamin Musundi
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- ? 19 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Certiorari
- Outcome
- application struck out as incompetent
- Legal Topics
- Judicial Review, Certiorari, Tribunal Awards, Conversion to Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Saboti Land Disputes Tribunal comprising of Christopher Saekwo & 7 others
Respondent
John Jamin Musundi
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Certiorari
Legal Issues
- 1 Whether the decision of the Saboti Land Disputes Tribunal, having been adopted as a judgment of the court, is amenable to judicial review by certiorari.
- 2 Whether the application is properly framed and competent.
Ratio Decidendi
The court held that once the award of the Saboti Land Disputes Tribunal was adopted as a judgment of the court, it ceased to exist as a separate decision and became a court judgment. As such, there was no longer a tribunal decision amenable to judicial review by certiorari. The application was therefore incompetent as it sought to quash a non-existent decision. The procedural error in naming the Republic as applicant was not fatal, but the substantive defect was determinative. The application was struck out for incompetence.
Court Disposition
application struck out as incompetent
Orders
- The application is struck out on the ground that it is incompetent as it seeks to quash a decision that does not exist.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Misc Civil Appli 19 of 2008
REPUBLIC…………………………………………………………………….APPLICANT
?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /
VERSUS
?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" /SABOTILANDDISPUTES TRIBUNAL COMPRISING OF:-
CHRISTOPHER SAEKWO & 7 OTHERS.
JOHN JAMIN MUSUNDI……………………………………..EX-PARTE.
R U L I N G.
The application dated 4/3/2008 by John Jamin Musundi for leave to apply for an order of certiorari to quash the decision of Saboti Disputes Tribunal which admittedly was read and adopted as a judgment of the court on 21/1/2008 in Kitale CMC Land case no. 22 of 2007 is in substance misplaced and in form wrongly framed.The latter is not fatal.It relates to the error by the applicant in reflecting the Republic at this stage as the applicant.The manner in which the application should have been framed was explained in MOHAMED AHMEDvs.REPUBLIC 91957) EA 323 and FARMERS BUS vs.TRANSPORT LICENSING (1959) EA 779.
On substance, the court is enjoined to ascertain whether there is a prima facie evidence of an arguable case.To do this, the applicant must show that there exists a decision that is amenable to the remedy of judicial review and prima facie evidence of an arguable case for the order of certiorari.
The applicant avers in the application that the award sought to be quashed was on 21/1/2008 adopted as a judgment of the court in Kitale CMC Land case No. 22 of 2007. In effect therefore, the decision sought to be quashed no longer exists having been converted into a judgment from which a decree does ensue in accordance with the provisions of section 7 (2) of The Land Disputes Tribunals Act 1990. In the absence of a decision amenable to the remedy of judicial review, it is not possible for the applicant to show prima facie evidence of an arguable case.For this reason, I strike out the application on the ground that it is incompetent as it seeks to quash a decision that does not exist.It is so ordered.
G.B.M. KARIUKI.
JUDGE.
11/3/2008.