[2016] KEHC 6653 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

JUDICIAL REVIEW APPLICATION NO. 18 OF 2014

(FORMERLY JUDICIAL REVIEW NO. 23 OF 2010 EMBU)

IN THE MATTER OF THE APPLICATION BY JACKSON NJERU MURIUKI TO APPLY FOR ORDERS OF JUDICIAL REVIEW

AND

IN THE MATTER OF THE LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990

AND

IN THE MATTER OF GICHUGU LAND DISPUTES TRIBUNAL

AND

IN THE MATTER OF PROCEEDINGS IN GICHUGU SENIOR RESIDENT MAGISTRATE’S COURT L.D.T NO. 7 OF 2010

REPUBLIC……………………………………………..…….APPLICANT

VERSUS

THE GICHUGU LAND DISPUTES TRIBUNAL..........1ST RESPONDENT

SAMUEL GAKONO NGARE………………..…....….2ND RESPONDENT

JANE WANGECHI KIURA……………….………….3RD RESPONDENT

AND

JACKSON NJERU MURIUKI………….………....Ex-parte APPLICANT

JUDGMENT

On 5th December 2014 this Court granted the applicant leave to apply for orders of certiorari to remove into this Court and quash the award of the Gichugu Land Disputes Tribunal with respect to its award regarding parcel No. BARAGWI/GUAMA/671. It was the applicant’s case that the said Gichugu Land Disputes Tribunal (the Tribunal) had no jurisdiction to handle the dispute over that parcel of land.

That leave having been granted, the applicant proceeded to file the Notice of Motion on 19th December 2014 in which he sought the following substantive orders:-

An order of certiorari do issue to remove into the High Court and quash the award of Gichugu Land Disputes Tribunal read by the Gichugu Senior Resident Magistrate on 21st April 2010.

Cost for the application be provided for.

From the statement of facts and the verifying affidavit that accompanied the application for leave, it is clear that the basis of this application is that the Tribunal had no jurisdiction over the dispute before it by virtue of the provisions of Section 3 (1) of the Land Disputes Tribunal Act now repealed. A copy of the Tribunal’s proceedings and award in their case No. 25 of 2009 were annexed. No copy of the order read by the Senior Resident Magistrate at Gichugu Court on 21st April 2010 was annexed.

The application was opposed by the 3rd respondent JANE WANGECHI KIURA who in her replying affidavit deponed, inter alia, that no notice was given to the Registrar as required and even the purported notice dated 21st May 2010 does not bear the Court stamp. That the order of the Senior Resident Magistrate’s Court at Gichugu has not been demonstrated and in any case, the orders for leave granted by this Court were erroneous.

Submissions have been filed both by the applicant and the 3rd respondent. The 1st and 2nd respondent did not file any response to the application.

I have considered the application, the rival affidavits and annextures thereto and the submissions by counsels.

Although the Notice of Motion filed on 19th December 2014 also makes reference to the award read by the Gichugu Senior Resident Magistrate on 21st April 2010, no such order was availed as part of the documents herein. Indeed in my ruling delivered on 5th December 2014, I made the following observation:-

“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”

It follows, therefore, that the only order or decision placed before this Court for purposes of quashing is the Tribunal’s award delivered on 5th March 2009. Mr. Igati Mwai advocate for the 3rd respondent has submitted that the applicant having obtained leave to file the Notice of Motion, there was no compliance with the provisions of Order 53 Rule 4 (1) of the Civil Procedure Rules which provides as follows:-

“Copies of the statement accompanying the application for leave shall be served with the notice of motion and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement“emphasis added

Mr. Igati Mwai advocate has submitted that there was no service of the Notice of Motion on either his office or his client the 3rd respondent. The 3rd respondent confirms this in his replying affidavit. To answer that question, I have looked at the un-dated affidavit of service of JANE W. KIRAGU advocate filed herein on 18th March 2015 in which she depones in paragraph 4 as follows:-

“That sometimes on 2nd March 2015 within Kerugoya town while in the firm of Magee wa Magee & Co. advocates I served the firm of Igati Mwai & Co. advocates with an application dated 15th December 2014 indicating that the matter is coming up on 19th March 2015 by tendering them a copy of the same and requiring their signature”

Annexed to that affidavit of service is the Notice of Motion dated 15th December 2014. There is no averment therein that copies of the statements accompanying the application for leave were also served together with the said Notice of Motion. It is in that regard, therefore, that Mr. Igati Mwai has urged me to strike out this application for being incompetent in not complying with Order 53 Rule 4 Civil Procedure Rules.Counsel cited my own decision in the case of REPUBLIC VS THE PRINCIPAL MAGISTRATE KERUGOYA & OTHERS EX-PARTE NANCY WATHIBA KIMOO ELC JUDICIAL REVIEW CASE NO. 20 OF 2013 at KERUGOYA COURT in a case in which, incidentally, also involved the firm of Magee wa Magee advocate acting for the applicant. In that case, I held that failure to comply with the provisions of Order 53 Rule 4 of the Civil Procedure Rules was not a mere technicality curable by the provisions of Article 159 (2) (d) of the Constitution. In doing so, I relied on the Court of Appeal decision in SIGALAGALA POLYTECHNIC VS NELSON OGWERO C.A CIVIL APPEAL NO. 13 A OF 2013 (KISUMU) where the Court of Appeal in a majority decision (Maraga J.A dissenting) held that failure to comply with the provisions of Order 53 Rule 4 (1) of the Civil Procedurerenders an application incompetent and therefore liable for striking out. In the circumstances, and guided by the decision in the case of SIGALAGALA POLYTECHNIC (supra) which is binding on me, this application must be struck out.

If the application is to be considered on its merits, what is before me is the award of Gichugu Land Disputes Tribunal and not the order of the Gichugu Court dated 21st April 2010. From the record herein, that award was delivered on 5th November 2009. The relevant part of that award reads as follows:-

“Award read on 5th November 2009 in presence of the complainant and the defendant”

It follows therefore that the only award that is before me for quashing is the Tribunal’s award dated 5th November 2009. Although the Notice of Motion filed herein on 19th December 2014 also states that the said award was read by the Gichugu Senior Resident Magistrate on 21st April 2010, the Resident Magistrate is not a party in these proceedings and, as I have already stated above, no record of what transpired at the Gichugu Court on 21st April 2010 has been annexed. This Court can therefore only concern itself with the Tribunal’s award dated 5th November 2009.

Under Order 53 Rule 2 of the Civil Procedure Rules it is provided as follows:-

“Leave SHALL not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed unless the application for leave is made not later than six months after the date of the proceeding or such other proceedings…...”

emphasis added.

Although leave was granted by the Court on 5th December 2014 to apply for orders of certiorari to remove into this Court and quash the award of the Tribunal, it is clear that the said leave was erroneously granted as a matter of course and in contravention of the law. It is clear from the authority of AGAKHAN EDUCATIONAL SERVICE VS REPUBLIC & OTHERS C.A CIVIL APPEAL NO. 252 OF 2003that the Court retains the jurisdiction to set aside any ex-parte orders of leave particularly in clear cases such as this one where the application, having been filed well beyond the time allowed by the law is incompetent. It is also settled from the Court of Appeal’s case of AKO VS SPECIAL DISTRICT COMMISSIONER KISUMU & ANOTHER 1989 K.L.R 163 that there is an absolute prohibition against bringing an application for certiorari after the six months period stipulated in the l aw. It is obvious from the record herein that the decision sought to be quashed was rendered on 5th November 2009. The leave granted on 5th December 2014 could only have been granted as a matter of course which is not permitted. It was also hopelessly out of time. Therefore, even if the applicant’s Notice of Motion were to be considered on its merits, it can only be dismissed as it was filed well beyond the six (6) months period provided for both under the Law Reform Act (Section 9 (3) and the Civil Procedure Rules (Order 53 Rule 2).

Ultimately therefore and having found that the applicant’s Notice of Motion filed herein on 19th December 2014 is incompetent, I order it struck out with costs to the 3rd respondent.

B.N. OLAO

JUDGE

26TH FEBRUARY, 2016

Judgment delivered this 26th day of February 2016 in open Court

Ms Kiragu for Applicant present

Mr. Ngangah for 2nd Respondent present

Mr. Mwai for 3rd Respondent present

Right of appeal explained.

B.N. OLAO

JUDGE

26TH FEBRUARY, 2016