[2013] KEHC 5972 (KLR)
The court found that the interested party, Edward Awori Osalo, initiated a claim before the Funyula Land Disputes Tribunal despite being aware of other pending and decided cases between the same parties over the same parcel of land. The tribunal, therefore, acted without jurisdiction in entertaining the dispute. The...
Source-derived case information.
- Citation
- [2013] KEHC 5972 (KLR)
- Parties
- Applicant: Sylvester Okumu Okello; Respondent: Funyula Land Disputes Tribunal; Respondent: PM's Court at Busia; Interested Party: Edward Awori Osalo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 3 of 2009
- Procedural Posture
- Judicial Review / Ruling on Notice of Motion for Certiorari
- Outcome
- Application allowed. Order of certiorari granted. Costs to the applicant.
- Legal Topics
- Judicial Review, Certiorari, Tribunal Jurisdiction, Land Disputes, Forum Shopping
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvester Okumu Okello
Applicant
Funyula Land Disputes Tribunal
Respondent
PM's Court at Busia
Respondent
Edward Awori Osalo
Interested Party
Procedural Posture
Judicial Review / Ruling on Notice of Motion for Certiorari
Legal Issues
- 1 Whether the Funyula Land Disputes Tribunal had jurisdiction to determine the dispute over Samia/Bugongo/245.
- 2 Whether the adoption of the tribunal's award by Busia PMC Land Case No. 54 of 2008 was lawful.
- 3 Whether an order of certiorari should issue to quash the tribunal's proceedings and the adopted order.
Ratio Decidendi
The court found that the interested party, Edward Awori Osalo, initiated a claim before the Funyula Land Disputes Tribunal despite being aware of other pending and decided cases between the same parties over the same parcel of land. The tribunal, therefore, acted without jurisdiction in entertaining the dispute. The subsequent adoption of the tribunal's award by the Busia Principal Magistrate's Court was equally without legal basis. As the interested party conceded to the application for certiorari, the court held that the proceedings and orders of the tribunal and the adopting court must be quashed. The applicant, having incurred expenses due to the interested party's improper forum...
Court Disposition
Application allowed. Order of certiorari granted. Costs to the applicant.
Orders
- An order of certiorari is issued calling into this court and quashing the Funyula Land Disputes Tribunal order in case No. 15 of 2008 relating to Samia/Bugongo/245 of 7th August, 2008 and adopted by Busia PMC Land Case No. 54 of 2008 on 2nd September, 2008.
- The interested party shall pay the applicant's costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUSIA.
JUDICIAL REVIEW NO. 3 OF 2009.
REPUBLIC ………………………………………...……APPLICANT.
VERSUS
FUNYAL LAND DISPUTE. )
PM’S COURT AT BUSIA )………......………RESPONDENTS.
SYLVESTER OKUMU OKELLO. )
EDWARD AWORI OSALO ) ……..........…INTERESTED PARTY
R U L I N G.
The Exparte Applicant, namely SYLVESTER OKUMU OKELLO through M/S. Maloba & co. Advocates filed the notice of motion dated 6th November, 2009 for an order of certiorari to call into this court and quash the proceedings and order in Busia PMC. Land case NO.54 of 2008 adopting the award of Funyula Land Disputes Tribunal on 2nd September, 2008 plus costs.
The interested party, namely Edward Awori Osalo, through M/S. Wanyama & co. Advocates filed a replying affidavit dated 15th December, 2010 opposing the application.
By consent dated 29th February, 2012, counsel agreed to file written submissions. The applicant’s counsel filed their written submissions dated 13th March, 2012 on the same date while interested party’s counsel filed theirs dated 29th May, 2012 on 12th June, 2012.
Counsel then appeared before the court on 13th May, 2013 and disclosed that the interested party had conceded to the application and all that remained was for the court to make a ruling on costs.
I have carefully considered the written submissions by both counsel and the pleadings in the file and it is apparent there has been several cases some decided and at least one pending in Nairobi between the parties herein over the land subject matter of this case. The interested party was aware of those other cases when he initiated the claim before the Funyula Land Disputes Tribunal finally culminating with this case. It was the interested party’s action of going to lodge his claim in the wrong forum that made the Exparte applicant file the current application to which the interested party has conceded though late in the day. The Exparte party Applicant incurred expenses and the same should be paid by the interested party.
The Exparte Applicant’s application dated 6th November, 2009 is allowed and an order of certiorari issued calling the Funyula Land Disputes Tribunal order in case No. 15 of 2008 relating to Samia/Bugongo/245 of 7th August, 2008 and adopted by Busia PMC. Land case No. 54 of 2008 on 2nd September, 2008 in to this court and quashing the same. The Exparte applicant costs will be met by the interested party.
S. M. KIBUNJA,
JUDGE.
13TH JUNE, 2013.