[2008] KEHC 2785 (KLR)
The court held that the application for judicial review was not time-barred because the relevant period for challenging the decision commenced when the award of the District Land Disputes Tribunal was adopted as a decree of the court on 29/1/2007. The ex parte applicant acted promptly after the decree was issued,...
Source-derived case information.
- Citation
- [2008] KEHC 2785 (KLR)
- Parties
- Applicant: Republic; Respondent: District Land Disputes Central Division; Respondent: Senior Resident Magistrate Court Kerugoya; Respondent: Lucy Wangithi Kimunye; Applicant: Kimunye Maina
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 21 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled; application proceeds
- Legal Topics
- Judicial Review, Order 53 Procedure, Land Disputes Tribunal Awards, Time Limitation, Decree Adoption
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
District Land Disputes Central Division
Respondent
Senior Resident Magistrate Court Kerugoya
Respondent
Lucy Wangithi Kimunye
Respondent
Kimunye Maina
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the application for judicial review was filed within the prescribed limitation period under Order 53 of the Civil Procedure Rules.
- 2 Whether the procedural requirements for judicial review, including service and supporting affidavits, were complied with.
- 3 Whether the preliminary objection raised by the 3rd respondent has merit.
Ratio Decidendi
The court held that the application for judicial review was not time-barred because the relevant period for challenging the decision commenced when the award of the District Land Disputes Tribunal was adopted as a decree of the court on 29/1/2007. The ex parte applicant acted promptly after the decree was issued, and there was no delay attributable to the applicant. The court further found that all procedural requirements under Order 53, including service on the Deputy Registrar and the filing of supporting affidavits, were satisfied. The preliminary objection raised by the 3rd respondent was therefore without merit and was overruled.
Court Disposition
preliminary objection overruled; application proceeds
Orders
- The preliminary objection raised by the 3rd respondent is overruled.
- The application for judicial review shall proceed to hearing on the merits.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENTA AT EMBU
Misc Appli 21 of 2007
REPUBLIC……………………………………....................................................……………APPLICANT
VERSUS
THE DISTRICT LAND DISPUTES CENTRAL DIVISION……....................……1ST RESPONDENT
THE SENIOR RESIDENT MAGISTRATE COURT KERUGOYA……… .…….2ND RESPONDENT
LUCY WANGITHI KIMUNYE…………...................................................………….3RD RESPONDENT
KIMUNYE MAINA…………….................................................................…………………….EX-PARTE
RULING
The 3rd Respondent represented by Mr. Njagi Advocate has raised objections to this application (Notice of Motion in Judicial Review).
The main ground is that the dispute arose outside the prescribed period under Order 53 of Civil Procedure Rules. The leave was granted on 20/2/2007 and the decision/award of District Lands Tribunal was dated 3/8/2006. It is also sought to quash the decision of Senior Resident Magistrate Kerugoya who adopted the decision of the Tribunal into a court Judgment out of where a decree was issued for execution on 29/1/2007.
It is my finding that until the award was adopted as a decree of the court it was not executable by any party. Where a decision is delayed beyond the prescribed period of 6 months it is possible for parties to seek leave and extend time. However in this case no extension of time was sought. However the Exparte applicant did not delay when the award became a decree of the court on 29/1/2007.
On the issue of service upon the Deputy Registrar with the notice the application for leave was filed on 14/2/2007 and Notice to the registrar served upon Hon. Deputy Registrar on the same date. However the application was not placed before Judge until 20/2/2007. It is my view that the provisions of Order 53 (3) are complied with on the issue of accompanying affidavit. It is to be noted that the application is supported by affidavit with annexures. The statement of facts which is supported by affidavit clearly shows nature of the relief sought though generally and I am satisfied that the procedural requirements under order 53 for Judicial Review are complied with. The dispute is serious purporting as it does distribution of the land of a registered proprietors. I do not support the Preliminary Objection which is hereby overruled.
Dated this 25th February, 2008.
J. N. KHAMINWA
JUDGE
25/3/2008
Khaminwa – Judge
Njue – Clerk
Mr. Kahiga
Read in open court.
J. N. KHAMINWA
JUDGE