[2014] KEHC 986 (KLR)
The court found that the ex-parte applicant had established a prima facie case that the Gichugu Land Disputes Tribunal may have acted outside its jurisdiction by making orders affecting land parcel BARAGWI/GUAMA/671, which was not properly before it. The supporting affidavit and documents demonstrated sufficient...
Source-derived case information.
- Citation
- [2014] KEHC 986 (KLR)
- Parties
- Applicant: Republic; Respondent: Gichugu Land Dispute Tribunal; Respondent: Samuel Gakono Ngare; Respondent: Jane Wangeci Kiura; Applicant: Jackson Njeru Muriuki
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 18 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review (certiorari)
- Outcome
- Leave to apply for orders of certiorari granted.
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Certiorari, Land Disputes, Leave to Apply, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Gichugu Land Dispute Tribunal
Respondent
Samuel Gakono Ngare
Respondent
Jane Wangeci Kiura
Respondent
Jackson Njeru Muriuki
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review (certiorari)
Legal Issues
- 1 Whether the Gichugu Land Disputes Tribunal had jurisdiction to determine the dispute over land parcel BARAGWI/GUAMA/671.
- 2 Whether the ex-parte applicant has established a prima facie case to warrant leave to apply for orders of certiorari.
- 3 Whether there is any order of the Senior Resident Magistrate’s Court at Gichugu to be quashed.
Ratio Decidendi
The court found that the ex-parte applicant had established a prima facie case that the Gichugu Land Disputes Tribunal may have acted outside its jurisdiction by making orders affecting land parcel BARAGWI/GUAMA/671, which was not properly before it. The supporting affidavit and documents demonstrated sufficient grounds to warrant the grant of leave to apply for orders of certiorari. The court also noted that there was no evidence of any order from the Senior Resident Magistrate’s Court at Gichugu to be quashed, and thus the application was limited to the Tribunal's award. The court declined to order that leave operate as a stay, as there was no evidence that the Tribunal's award had been...
Court Disposition
Leave to apply for orders of certiorari granted.
Orders
- Leave is granted to the ex-parte applicant to apply for orders of certiorari to quash the award of the Gichugu Land Disputes Tribunal regarding land parcel BARAGWI/GUAMA/671.
- The applicant shall file and serve the Notice of Motion within 21 days from the date hereof and serve the same upon the respondents and all such other persons as are affected by it within 14 days of filing.
Full Case Text
Judgment text and source record
32 paragraphs
00REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELC MISC. JR NO. 18 OF 2014
REPUBLIC ………………………………………….…………………………………… APPLICANT
VERSUS
THE GICHUGU LAND DISPUTE TRIBUNAL ………………….…………………1ST RESPONDENT
SAMUEL GAKONO NGARE ………………………………….……………………...2ND RESPONDENT
JANE WANGECI KIURA ………………………………………………………………..3RD RESPONDENT
AND
JACKSON NJERU MURIUKI ………………………………………………….. EX-PARTE APPLICANT
RULING
On 24th May, 2010, the ex-parte applicant herein moved the Court vide Chamber Summons application seeking leave to apply for orders of certiorari to remove into this Court and quash the award of the Gichugu Land Dispute Tribunal with respect to its judgment regarding land parcel No. BARAGWI/GUAMA/671. It is the ex-parte applicant’s case that infact the said Tribunal had no jurisdiction to handle the dispute. Annexed to the said application was an award of the Gichugu Land Disputes Tribunal dated 5th November 2009, a copy of the Title deed in respect of land parcel No. BARAGWI/GUAMA/671 and a letter dated 8th February, 2010 forwarding the decision of the said Gichugu Land Disputes Tribunal to the Senior Resident Magistrate’s Court at Gichugu.
When the matter was placed before the Judge at Embu Wanjiru Karanja J. (as she then was), she directed that since the leave sought also refers to the orders of the Senior Resident Magistrate’s Court at Gichugu, that order ought to have been annexed to the application. The Judge then ordered that the application be mentioned before her so that the issue could be clarified. The date of the order is not very clear from the handwritten proceedings but on 27th June 2013, Ong’udi J. ordered the transfer of the case to this Court.
When the matter came up before me on 25th November, 2014, Ms Muthike informed the Court that infact the application for leave had not been canvassed yet. The Court therefore allowed her to argue the application for leave as there was no record to suggest that infact the said application had been canvassed.
I have considered the ex-parte application for leave. It seeks to quash the decision of the Gichugu Land Disputes Tribunal on the ground that the said Tribunal had no jurisdiction to handle the dispute over the land registered as BARAGWI/GUAMA/671. Although the Notice to the Registrar also mentions that it is intended to quash the order of the Senior Resident Magistrate’s Court at Gichugu, there is infact no such order. In any case, the substantive Chamber Summons only refers to the order of the Gichugu Land Disputes Tribunal.
I have considered the application and the supporting affidavit of the ex-parte applicant. What is required is really an affidavit verifying the facts to be relied upon. It is the ex-parte applicant’s case that the Gichugu Land Disputes Tribunal had no jurisdiction to handle the dispute. The award itself is headed as follows:-
“GICHUGU LAND DISPUTE TRIBUNAL HEARING OF CASE NO. 25/09 OF PARCEL NGARIAMA/THIRIKWA/758”
However, in the course of its award, the Tribunal made orders touching on parcel No. BARAGWI/GUAMA/671 which it ordered transferred by the ex-parte applicant and two others into the names of one SAMUEL NGURE.
Looking at the documents herein, I am satisfied that the ex-parte applicant has established a prima facie case to warrant a grant of the orders sought in his Chamber Summons dated 24th May, 2010. I therefore allow the application and grant leave to apply for orders of certiorari as sought therein. I see no reason to order that such leave do operate as stay of any order because at this stage, there is nothing to suggest that the award of the Tribunal was subsequently made an order of any Court as no such order has been availed to this Court. The applicant shall file and serve the Notice of Motion within 21 days from the date hereof and serve the same upon the respondents and all such other persons as are affected by it within 14 days of filing.
Costs shall be in the cause.
B.N. OLAO
JUDGE
5TH DECEMBER, 2014
5/12/2014
Before
R. Limo - Judge
Mbogo – CC
Mr. Magee for Ex-parte Applicant – present
COURT: Ruling delivered in open Court in the presence of Mr. Magee for the Ex-parte Applicant.
R. LIMO
JUDGE
5TH DECEMBER, 2014