[2010] KEHC 2381 (KLR)
The court found that the application for judicial review was misconceived because there was no decision by the Land Disputes Tribunal capable of being quashed. The tribunal had not completed its findings, and no decision had been adopted by the Magistrate's Court. Judicial review is only available to challenge...
Source-derived case information.
- Citation
- [2010] KEHC 2381 (KLR)
- Parties
- Applicant: Republic; Respondent: The Marakwet District Land Disputes Tribunal; Respondent: Marakwet District Commissioner; Respondent: Marakwet District Lands Settlement Officer; Respondent: The Minister of Lands & Settlement; Interested Party: Kibiwott Chemwei; Interested Party: Joseph Kibiwot Chemwei; Interested Party: Jacob Kibiwot; Interested Party: Smith Kaino; Interested Party: Chepkiyeng Chelanga; Applicant: James Cheruiyot Cheptoo; Applicant: William Kiptarus Cheboi; Applicant: Paulo Komen Cheserek; Applicant: Elisha Kimaiyo Cherop
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 71 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Judicial Review Application
- Outcome
- application dismissed with costs
- Legal Topics
- Judicial Review, Tribunal Jurisdiction, Gazettement of Members, Land Disputes, Quashing Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
The Marakwet District Land Disputes Tribunal
Respondent
Marakwet District Commissioner
Respondent
Marakwet District Lands Settlement Officer
Respondent
The Minister of Lands & Settlement
Respondent
Kibiwott Chemwei
Interested Party
Joseph Kibiwot Chemwei
Interested Party
Jacob Kibiwot
Interested Party
Smith Kaino
Interested Party
Chepkiyeng Chelanga
Interested Party
James Cheruiyot Cheptoo
Applicant
William Kiptarus Cheboi
Applicant
Paulo Komen Cheserek
Applicant
Elisha Kimaiyo Cherop
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Judicial Review Application
Legal Issues
- 1 Whether the Land Disputes Tribunal acted without jurisdiction due to lack of proper gazettement of its members.
- 2 Whether there was a decision by the tribunal capable of being quashed by judicial review.
- 3 Whether the application for judicial review was properly before the court in the absence of a tribunal decision.
Ratio Decidendi
The court found that the application for judicial review was misconceived because there was no decision by the Land Disputes Tribunal capable of being quashed. The tribunal had not completed its findings, and no decision had been adopted by the Magistrate's Court. Judicial review is only available to challenge actual decisions or determinations, not incomplete proceedings or anticipated outcomes. The court also noted that the issue of the tribunal's composition and gazettement was rendered moot in the absence of a decision. Accordingly, the application was dismissed with costs to the respondents and interested parties.
Court Disposition
application dismissed with costs
Orders
- The application for judicial review is dismissed.
- Costs awarded to the respondents and interested parties.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
MISCELLANEOUS CIVIL APPLICATION 71 OF 2006
REPUBLIC ………………………………...............……………………APPLICANT
=VERSUS=
1. THEMARAKWETDISTRICTLANDDISPUTES TRIBUNAL
2. MARAKWET DISTRICT COMMISSIONER
3. MARAKWET DISTRICT LANDS SETTLEMENTOFFICER
4. THE MINISTER OF LANDS & SETTLEMENT……...............RESPONDENTS
AND
1. KIBIWOTT CHEMWEI
2. JOSEPH KIBIWOT CHEMWEI
3. JACOB KIBIWOT
4. SMITH KAINO AND
5. CHEPKIYENG CHELANGA ………..........................INTERESTED PARTIES
AND
1. JAMES CHERUIYOT CHEPTOO
2. WILLIAM KIPTARUS CHEBOI
3. PAULO KOMEN CHESEREK
4. ELISHA KIMAIYO CHEROP…………....................EX-PARTE APPLICANTS
RULING
I.Background.
1. A dispute between two clans as to the boundary has been going on for several years. In this Current judicial review proceedings,a land disputes tribunal was held. It in fact was not completein its findings. There has been no decision adopted by theMagistrate’s Court.
2. The exparte applicant applies for the said lands disputes tribunal stopped from making orders on grounds that the saidtribunal members were sitting without basis as none weregazetted under the gazette notice provided. Its civil L.N.288/04of 14. 4.2004 by A. Kimunya Minister of Lands as he then was.
II.In reply:
3. The Advocate for the respondent, Attorney General left it to
Court. The advocate for the interested party claim that there was nothing to quash as no decision had been taken.
III.Opinion
4. Judicial review proceedings are brought into Court against orders making decisions that are detrimental to the exparteappeallant. In this particular case no decision has been made to quash the said findings of the elders (which findings is denied).
5. The application for judicial review proceedings are hereby dismissed with costs to the respondent and interested party.
DATED AT ELDORET THIS 21ST DAY OF April, 2010.
……………………………
M.A. ANG’AWA,
JUDGE.
Advocate
(i)Cheptarus Advocate instructed by the firm of M/s Cheptarus & Co. Adv. for the
Exparte Applicant - Present
(ii)R.K. Cheruiyot Advocate instructed by the firm of m/s Kimaru Kiplagat & Co. Adv. for the
Interested - Party - Present
((iii) C. Oyula, State Counsel instructed by the Attorney General for the State – Present