[2014] KEHC 7065 (KLR)
The court found that the applicant had established a prima facie case for the grant of leave to apply for an order of certiorari. The Tribunal's decision was challenged on the grounds that it was made after the repeal of the enabling statute and that the appeal was filed long after the statutory limitation period....
Source-derived case information.
- Citation
- [2014] KEHC 7065 (KLR)
- Parties
- Applicant: Republic; Respondent: Gachoka District Land Dispute's Tribunal; Respondent: The Hon. Attorney General; Applicant: Peter M. Ngari; Interested Party: David Ngari
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 40 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Certiorari and Stay
- Outcome
- Leave to apply for certiorari granted; leave to operate as stay of Tribunal decision.
- Judges
- BN Olao
- Legal Topics
- Judicial Review, Certiorari, Tribunal Jurisdiction, Statutory Time Limits, Land Disputes, Repealed Legislation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Gachoka District Land Dispute's Tribunal
Respondent
The Hon. Attorney General
Respondent
Peter M. Ngari
Applicant
David Ngari
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Certiorari and Stay
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to issue the impugned orders after the repeal of the Land Disputes Tribunal Act.
- 2 Whether the appeal to the Tribunal was filed out of time contrary to statutory requirements.
- 3 Whether the applicant has established sufficient grounds for leave to apply for certiorari and for stay of the Tribunal's decision.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of leave to apply for an order of certiorari. The Tribunal's decision was challenged on the grounds that it was made after the repeal of the enabling statute and that the appeal was filed long after the statutory limitation period. The court held that these grounds raised serious jurisdictional questions warranting further judicial review. Consequently, leave was granted, and such leave was ordered to operate as a stay of the Tribunal's decision pending determination of the substantive motion.
Court Disposition
Leave to apply for certiorari granted; leave to operate as stay of Tribunal decision.
Orders
- Leave is granted to the applicant to apply for an order of certiorari to quash the Tribunal's decision.
- The leave granted shall operate as a stay of any decision made pursuant to the Minister's Appeal sought to be quashed.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
MISCELLANEOUS APPLICATION NO. 40 OF 2013
IN THE MATTER OF AN APPLCATION BY PETER M. NGARI FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI
AND
IN THE MATTER OF LAND DISPUTE’S TRIBUNAL (ACT 18 OF 1990)
AND
IN THE MATTER OF LAND PARCELS
MBEERE/KIAMBERE/1605/1606/1607/1608/1609/1610/1611/1612/1613
KIAMBERE ADJUDICATION SECTION
REPUBLIC .......................................................................................... APPLICANT
VERSUS
GACHOKA DISTRICT LAND DISPUTE’S TRIBUNAL....... 1ST RESPONDENT
THE HON. ATTORNEY GENERAL .......................................2ND RESPONDENT
AND
PETER M. NGARI ......................................................... EX-PARTE APPLICANT
DAVID NGARI ................................................................. INTERESTED PARTY
RULING
By an amended Chamber Summons filed herein on 9th December, 2013, the ex-parte applicant herein seeks leave to apply for an order of certiorari to remove into this Court and quash the decision made by the Land Disputes Tribunal Mbeere South District in Land Dispute Tribunal Ministers Land Appeal Case No. 267 of 2001 dated 31st July 2013 awarding land parcels No. MBEERE/KIAMBERE/1605 – 1613 to the interested party herein. The applicant also seeks that the grant of leave do operate as a stay of the said decision till this application is determined or until further orders of the Court.
The application is grounded on the Statutory statement and affidavit of the applicant PETER M. NGARI and the other annextures attached thereto.
The main ground, as I discern from the material placed before me, is that the said Tribunal had no powers to issue the orders that it did because by that time, the Land Disputes Tribunal Act had already been repealed and further, the appeal itself was filed ten (10) years after the mandatory stipulated period of sixty (60) days within which an appeal ought to be filed. I have considered the application and the submissions of Mr. Ngare advocate for the applicant. I am satisfied that prima facie, the applicant has established sufficient grounds for the orders sought in the said Chambers Summons. I accordingly allow the same and grant the leave sought. In accordance with Rule 3 (1) of Order 53 of the Civil Procedure Rules, I direct that the applicant do file the substantial Notice of Motion within 21 days from the date of delivery of this ruling and serve the same upon all the respondents and all such persons as are affected by it within 14 days of filing and thereafter file an affidavit indicating who has been served. The leave granted shall also operate as a stay of any decision made pursuant to the said Minister’s Appeal sought to be quashed.
The costs shall be in the cause.
B.N. OLAO
JUDGE
31ST JANUARY, 2014
31/01/2014
Coram
B.N. Olao – Judge
CC – Mwangi
Mr. Ngari for the Applicant present
Respondent
COURT: Ruling delivered in open Court this 31st day of January 2014.
Mr. Ngari for Mr. Kamunda for applicant present.
B.N. OLAO
JUDGE
31ST JANUARY, 2014