[2010] KEHC 1954 (KLR)
The court declined to render a judgment on the merits of the judicial review application because only the ex parte applicant had filed submissions and there was no appearance or participation by the respondents or the interested party. The court held that proceeding to determine the matter in these circumstances...
Source-derived case information.
- Citation
- [2010] KEHC 1954 (KLR)
- Parties
- Applicant: Republic; Respondent: Director of Land Adjudication and Settlement; Respondent: Land Adjudication Board and Settlement Officer, Makueni District; Respondent: Chief Land Registrar; Interested Party: Philip Kilonzo Moki; Ex Parte Applicant: Robert Muli Matolo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 9 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary/procedural Issue Regarding Hearing and Substitution of Deceased Interested Party
- Outcome
- Application not determined on merits; matter stood over for hearing after substitution of deceased interested party.
- Legal Topics
- Judicial Review, Natural Justice, Land Adjudication, Certiorari, Prohibition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Director of Land Adjudication and Settlement
Respondent
Land Adjudication Board and Settlement Officer, Makueni District
Respondent
Chief Land Registrar
Respondent
Philip Kilonzo Moki
Interested Party
Robert Muli Matolo
Ex Parte Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary/procedural Issue Regarding Hearing and Substitution of Deceased Interested Party
Legal Issues
- 1 Whether the court can proceed to determine the judicial review application in the absence of submissions or appearance by the respondents and the interested party.
- 2 Whether the death of the interested party necessitates substitution before the matter can proceed.
- 3 Whether deciding the case based solely on the ex parte applicant's submissions would breach the rules of natural justice.
Ratio Decidendi
The court declined to render a judgment on the merits of the judicial review application because only the ex parte applicant had filed submissions and there was no appearance or participation by the respondents or the interested party. The court held that proceeding to determine the matter in these circumstances would violate the cardinal principle of natural justice, which requires that all parties who may be affected by the outcome be given an opportunity to be heard. Furthermore, the death of the interested party necessitated consideration of substitution before the matter could proceed. The court therefore directed that the application be fixed for hearing after the issue of...
Court Disposition
Application not determined on merits; matter stood over for hearing after substitution of deceased interested party.
Orders
- The notice of motion dated 31st January 2005 to be fixed for hearing at the registry after the issue of possible substitution of someone in place of the deceased interested party has been looked into.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS Miscellaneous Application 9 of 2005 REPUBLIC ............................................................................................. APPLICANT
-VS-
THE DIRECTOR OF LAND ADJUDICATION ANDSETTLEMENT.....1ST RESPONDENT
THE LAND ADJUDICATION BOARDAND
SETTLEMENT OFFICER, MAKUENI DISTRICT.............................. 2ND RESPONDENT
THE CHIEF LAND REGISTRAR ................................................... 3RD RESPONDENT
PHILIP KILONZO MOKI ......................................................... INTERESTED PARTY
ROBERT MULI MATOLO.......................................................EX PARTE APPLICANT
AND
IN THE MATTER OF THE LAND ADJUDICATION ACT, CAP 284 LAWS OFKENYA
AND
IN THE MATTER OF OBJECTION CASE NO 352, KIVANI ADJUDICATION SECTION
R U L I N G
This is an application, by notice of motion dated31st January 2005, for judicial review.Various reliefs are sought as follows:-
1. “An order of certiorari...to bring to this court for purposes of being quashed the decision, order, findings and/or directive of the 1st Respondent in Objection Case No. 352 contained in his letter dated 27. 09. 2004 referring to land parcel No. 803, Kivani Adjudication Section, for re-adjudication by 2nd Respondent in terms of illegal clan proceedings of 1991.
2. An order of prohibition...directed to the 2nd Respondent prohibiting him from executing the decision, order or directive of the 1st Respondent contained in his letter dated 27. 09. 2004 and/or the ruling by the Aombe Clan allegedly made on 27. 02. 1991.
3. An order of prohibition...directed to the 2nd Respondent prohibiting him from entering into land parcel No. 803, Kivani Adjudication Section, on 25. 01. 2005 or at all, or in any other manner interfering with the boundaries thereof, or any adjudication records which touch on the said suit premises.
4. An order of prohibition...directed to the 3rd Respondent prohibiting him from registering the whole of land parcel No. 803 in favour of the 4th Respondent alone as the absolute registered owner.
5. An order of mandamus...directed to the 3rd Respondent compelling him to register land parcel No. 803 in favour of the Applicant and the 4th Respondent in the ratio of 2 acres and 0. 09 acres respectively.
6. ....
7. ....
Leave to institute the proceedings was obtained on25th January 2005upon chamber summons dated24th January 2005.
It seems to me that reliefs 3, 4 and 5 raise issues that cannot be properly adjudicated in these present proceedings.They ought to be raised in an ordinary suit commenced by way of plaint.Only reliefs 1 and 2 can be properly dealt with in this judicial review.
On 1st of December 2009 an order was made, in effect, for the judicial review to be heard by way of written submissions.When the order was made, there was appearance only for the Ex Parte Applicant.There was no appearance for the Interested Party or the Respondents.There is no evidence that the order for the matter to be heard by way of written submissions was ever served upon the Interested Party and the Respondents.
It is thus not surprising that only the Ex Parte Applicant has filed written submissions.No other party has filed them.
On8th March 2010, the court was informed that the Interested Party had died.It was not indicated when he died.Needless to say, an Interested Party in judicial review proceedings is a necessary party, as any order made may affect him.In the present case, an order made herein may no doubt affect the estate of the deceased Interested Party.On the aforesaid date, that is8th March 2010, there was also no appearance for the Respondents.
To render a decision in this matter upon the submissions of only the Ex Parte Applicant, is to decide the case without the Interested Party and the Respondents having been accorded an opportunity to be heard.That would be a breach of a cardinal principle of the rules of natural justice.It would be untenable.
I must therefore decline to write a judgment at this stage.I direct that the notice of motion dated31st January 2005be fixed for hearing at the registry after the issue of possible substitution of someone in place of the deceased Interested Party has been looked into.Costs shall in the cause.It is so ordered.
DATED AND SIGNED THIS 12TH DAY OF MAY 2010
H.P.G. WAWERU
JUDGE
DELIVERED THIS14THDAY OF MAY 2010