[2009] KEHC 942 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT MERU

Judicial Review 5 of 2009

IN THE MATTER OF AN APPLICATON BY M’IBARI GATUGUTI FOR ORDERS OF CERTIORARI AND MANDAMUS

AND

IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA

AND

IN THE MATER OF MWERU III ADJUDICATON SECTION

AND

IN THE MATTER OF ARBITRATION BOARD CASES NO. 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 183, AND 184 ALL OF 2006

AND

IN THE MATTER OF LAND ADJUDICATION ACT CAP 284 LAWS OF KENYA

REPUBLIC ……………………………………. APPLICANT

VERSUS

LAND ADJUDICATION OFFICER IMENTI SOUTH/NORTH

DISTRICTS ……………………………. 1ST RESPONDENT

ARBITRATION BOARD MWERU III

ADJUDICATION SECTION ………… 2ND RESPONDENT

FESTUS MWOBOBIA, ALLAN KIRIMI,

GILBERT KAARA & 160 OTHERS …. INTERESTED PARTIES

M’IBARI GATUGUTI ………………….. EX PARTE APPLICANT

JUDGMENT

What is the subject of this judgment is the notice of motion dated 19th February 2009? The ex parte applicant had on 13th February 2009 obtained leave of this court to apply for judicial review orders, more specifically, orders of certiorari and mandamus. By the present notice of motion, the ex parte applicant seeks those orders. In the verifying affidavit dated 3rd February 2009, the ex parte applicant deponed that the arbitration board under the Land Adjudication Act which was constituted on 10th November 2008 went contrary to section 7 of the said Act. That the officers who were appointed for that arbitration were four in number whereas in that section they ought to be atleast five. The application is opposed by the interested parties. They filed a replying affidavit which although is undated was filed in court on 5th June 2009. In that affidavit sworn on behalf of all the interested parties by Festus Mwobobia they stated that the documents filed in this action had been signed by the son of the ex parte applicant. I have looked at the verifying affidavit and I am unable to find evidence to support that allegation. The verifying affidavit dated 3rd February 2009 was sworn by M’Ibare Gatuguti who is the ex parte applicant in this matter. The interested parties also deponed that the court should look at the substance and not the form and should therefore not pay regard to the manner in which the decision was reached by the arbitration board. They termed the actions of the ex parte applicant as one seeking individual interests. In this regard, I refer to the provisions of section 7 (1). It is in the following terms:-

“7. (1) The Provincial Commissioner of the province in which the adjudication area lies shall, upon the request of the adjudication officer, appoint a panel for the adjudication area consisting of not less than six and not more than twenty-five persons resident within the district in which the adjudication are is situate and the adjudication officer may from time to time appoint in writing not less than five persons from the panel to form an arbitration board for a particular question arising in an adjudication section within the adjudication area:-

That section clearly shows that the arbitration board members should have been not less than six and not more than 25 persons. In this case, they were four that made the decision of 10th November 2008 not tenable because of that non compliance. It is deponed also by the interested parties that the ex parte applicant had omitted some of the parcels numbers which had been deliberated upon by the arbitration board. I would respond by saying that what is before court is not an appeal but rather it is an action seeking to review the decision of that arbitration board on the basis that the board contravened the law. Just in an attempt to enlighten one on what judicial review is, I would quote from the book, “A Practical Approach to Civil Procedure by Stuart Sime.”

“Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. So said Lord Brighman in Chief Constable of the North Wales Police V. Evans(1982) 1 WLR 1155, HL. In the same case, Lord Lord Hailsham of St. Marylebone LC said that the purpose of judicial review is to ensure that an individual is given fair treatment by a wide range of authorities, whether judicial quasi- judicial, or administrative, to which the individual has been subject. It is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that the authority constituted by law to decide the matters in question.”

I find that the board as constituted which sat and deliberated on this matter on 10th November 2008 contravened section 7 of the Land Adjudication Act Cap 204 and accordingly the prayers sought by the ex parte applicants are indeed merited. I grant the following orders:-

1. That an order of certiorari does hereby issue to remove to this Court the decision of Mweru III Adjudication Section Arbitration Board made on 10th November, 2008 in Arbitration Board Case Nos. 214,215, 216,217,218, 219,220, 221, 222, 223,224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 183 and 184 all of 2006 and quash the same and other orders therein made without jurisdiction and contrary to the law of the land.

2. That an order of mandamus does hereby issue to the Land Adjudication Officer Imenti South/North Districts compelling him to constitute a proper arbitration board, to hear de novo Arbitration Board Case Nos. 214,215, 216,217,218, 219,220, 221, 222, 223,224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 183 and 184 all of 2006, as provided for under section 7 of the Land Adjudication Act Cap 284 Laws of Kenya.

3. Since the contravention was not committed by the interested parties but rather by the one who constituted the board, each party shall bear their own costs.

Dated and delivered at Meru this 6th day of November 2009.

MARY KASANGO

JUDGE