[2015] KEHC 2292 (KLR)
The court found that although the subject matter of the suit land originally involved 17 clans, only two clans (Mbandi and Kiragu) were actively involved in the current judicial review process. However, the remaining 15 clans, being parties directly affected by the outcome, were not served with the substantive...
Source-derived case information.
- Citation
- [2015] KEHC 2292 (KLR)
- Parties
- Applicant: Republic; Applicant: Ambrose N. Nthiga; Respondent: District Commissioner Mbeere District; Interested Party: Joseph N. Mitaru; Respondent: 16 Clans
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 37 of 2014
- Procedural Posture
- Judicial Review Application / Ruling on Service of Notice of Motion and Directions for Hearing
- Outcome
- Directions issued for service of notice of motion on all affected clans before substantive hearing.
- Legal Topics
- Judicial Review Procedure, Service of Process, Land Adjudication Disputes, Certiorari Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Ambrose N. Nthiga
Applicant
District Commissioner Mbeere District
Respondent
Joseph N. Mitaru
Interested Party
16 Clans
Respondent
Procedural Posture
Judicial Review Application / Ruling on Service of Notice of Motion and Directions for Hearing
Legal Issues
- 1 Whether the 15 clans not directly involved in the current judicial review process should have been served with the substantive notice of motion as required by Order 53 rule (3)(2).
- 2 Whether failure to serve the 15 clans affects the validity of the judicial review proceedings.
Ratio Decidendi
The court found that although the subject matter of the suit land originally involved 17 clans, only two clans (Mbandi and Kiragu) were actively involved in the current judicial review process. However, the remaining 15 clans, being parties directly affected by the outcome, were not served with the substantive notice of motion as required by Order 53 rule (3)(2) of the Civil Procedure Rules. The court held that this was a mandatory procedural requirement and that failure to serve the affected parties rendered the process defective. The court therefore directed that the ex parte applicant must serve the notices of motion on all the remaining 15 clans before the matter could proceed to...
Court Disposition
Directions issued for service of notice of motion on all affected clans before substantive hearing.
Orders
- Counsel for the ex parte applicant to serve the notices of motion on all the remaining 15 clans.
- Matter to be mentioned before the Deputy Registrar to fix a hearing date for the substantive motion in respect of the order of certiorari.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
J.R. E.L.C. NO 37 OF 2014
FORMERLY EMBU JR 4 OF 2007
JOSEPH N. MITARU...................................APPELLANT
VERSUS
16 CLANS................................RESPONDENTS
AND
IN THE MATTER OF JUDICIAL REVIEW
REPUBLIC...............................APPLICANT
AMBROSE N. NTHIGA.......................EX-PARTE APPLICANT
VERSUS
DISTRICT COMMISSIONER MBEERE DISTRICT.........1st RESPONDENT
JOSEPH N. MITARU......................INTERESTED PARTY
RULING
A ruling in this application and three others namely JR ELC 29/14, Ambrose Nthiga v. Mbeere South District, JR ELC 40/14 Ambrose Nthiga v. D. C. Mbeere South District and JR ELC 41/14, Ambrose Nthiga v. D. C Mbeere South District and Another was to be delivered on 16 April 2015, but was postponed to 22nd April 2015 due to other official engagement. In all of them, an order of certiorari is sought to quash the appellate decision of the District Commissioner on behalf of the Minister for Lands.
I have perused the appeal judgement of the District commissioner (D C), the decision of the Land Adjudication Officer and the order of this court (Khaminwa, J) dated 22nd November, 2007, granting leave to the ex parte applicants to file the substantive notices of motion under Order 53 of the 2010 Civil Procedure Rules. I have come to the conclusion that the subject matter of the suit land involved 17 clans namely:
1. Ngithi
2. Mbandi
3. Rweru,
4. Marigu,
5. Nditi,
6. Mururi,
7. Mwitia,
8. Ngui,
9. Ikandi,
10. Ikambi,
11. Kere,
12. Mwendia,
13. Ciina,
14. Iruma,
15. Kiragua,
16. Ngai and
17. Rwangondi
I find that only two clans namely Mbandi and Kiragu clans are involved in the current Order 53 judicial review process. Furthermore I find that the remaining 15 clans were not involved in the current judicial review process.
Under Order 53 rule (3) (2), the remaining 15 clans should have been served with the substantive notices of motion. This is a mandatory requirement. In the English case of R v. Rent Officer Service, ex parte Muldoon (1996) 3 All ER 498 the House of Lords held that it is only those parties that are directly affected who should be served with the notice of motion. In that case the Secretary State was refused leave to be joined as a party because he was not a person directly affected within the meaning of the English rules of procedure governing judicial review in that Kingdom. In the instant case the 15 clans were not served with the notice of motion as mandatorily required.
In the light of the foregoing I hereby direct as follows:
1. Counsel for the ex parte applicant should serve the notices of motion on all the remaining 15 clans.
2. Thereafter, the matter should be mentioned before the Deputy Registrar to fix a hearing date for the substantive motion in respect of the order of certiorari.
3. This order applies to all the above mentioned applications in para. 1
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 22nd day of April 2015
In the presence of Mr. Njoroge holding brief for Ms Wairimu for the Ex parte Applicants and Mr. Okwaro for the Interested Parties
Court clerk Mr Muriithi.
J.M. BWONWONGA
JUDGE