[2012] KEHC 5298 (KLR)
Although the court found that the Land Disputes Tribunal lacked jurisdiction to determine matters of succession and distribution of property, the application for certiorari was fatally defective due to procedural non-compliance. Specifically, the applicant failed to serve the required notice on the presiding officer...
Source-derived case information.
- Citation
- [2012] KEHC 5298 (KLR)
- Parties
- Applicant: Republic; Respondent: Marakwet District Land Disputes Tribunal; Respondent: Senior Resident Magistrate Iten Law Courts; Respondent: Kimisoi Chemwetich; Respondent: Hon. Attorney General; Applicant: Kiplagat Chemwetich
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 158 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Certiorari
- Outcome
- application struck out for procedural defects
- Judges
- A Mshila
- Legal Topics
- Judicial Review, Certiorari, Tribunal Jurisdiction, Succession Disputes, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Marakwet District Land Disputes Tribunal
Respondent
Senior Resident Magistrate Iten Law Courts
Respondent
Kimisoi Chemwetich
Respondent
Hon. Attorney General
Respondent
Kiplagat Chemwetich
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Certiorari
Legal Issues
- 1 Whether the Land Disputes Tribunal had jurisdiction to determine matters relating to succession and distribution of property.
- 2 Whether the Notice of Motion was fatally defective for lack of a fresh Statement of Facts and Verifying Affidavit as required by Order 53.
- 3 Whether failure to serve notice on the presiding officer under Order 53 Rule 3(2) rendered the application incompetent.
Ratio Decidendi
Although the court found that the Land Disputes Tribunal lacked jurisdiction to determine matters of succession and distribution of property, the application for certiorari was fatally defective due to procedural non-compliance. Specifically, the applicant failed to serve the required notice on the presiding officer under Order 53 Rule 3(2) and did not file a fresh Statement of Facts and Verifying Affidavit with the substantive motion. These documents are essential pleadings in judicial review applications, and their absence rendered the Notice of Motion unsupported and incompetent. As a result, the court struck out the application for non-compliance with mandatory procedural...
Court Disposition
application struck out for procedural defects
Orders
- The Notice of Motion dated 7th May 2008 is struck out.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
HMCA NO. 158 OF 2008
REPUBLIC...................................................................................................................APPLICANT
VERSUS
MARAKWET DISTRICT LANDDISPUTES TRIBUNALS............................1ST RESPONDENT
SENIOR RESIDENT MAGISTRATEITEN LAW COURTS..........................2ND RESPONDENT
KIMISOI CHEMWETICH................................................................................3RD RESPONDENT
HON. ATTORNEY GENERAL.........................................................................4TH RESPONDENT
KIPLAGAT CHEMWETICH......................................................................EXPARTE APPLICANT
RULING:
The Notice of Motion herein is dated the 7th day of May, 2008 and is brought under Order 53 Rule 3 & 4 of the Civil Procedure Rules and Sections 8 & 9 of the Law Reform Act and all other enabling powers and provisions of the law.
The Applicant is seeking an order for certiorari to move into Honourable court to quash the decision of the Marakwet District Land Disputes Tribunal which was read and adopted as a judgment of court on the 6th February 2008 by the Senior Resident Magistrates Court, Iten.
All the Respondents were duly served and were represented at the hearing hereof. The 1st, 2nd and 4th Respondents were represented by Learned State Counsel Eldoret, Mr. Ngumbi and the 3rd Respondents were represented by Learned Counsel, Mr. Chemwok.
I have heard the submissions of all counsel concerned and have perused the proceedings of the Land Disputes Tribunal on the matter adjudicated by the said Tribunal. The application has merit as the dispute adjudicated upon related to succession and distribution and not trespass. The Tribunal had no jurisdiction to hear and determine matters related to succession and make orders for distribution of property.
Nevertheless I am not inclined to grant the orders sought as the Notice of Motion is brought with defects and the application can be referred to as a non-starter.
The first defect is that the application is not preceded by a Notice served on the presiding officer in terms of Order 53 Rule 3(2). The operative word here is “SHALL” and this was not done.
The second omission relates to the accompanying Statement of Facts and Verifying Affidavit filed with the Notice of Motion before this court.
I find that the Applicant applied for leave and the same was granted. Thereafter the Applicant was directed to file a substantive motion within a specified period, which was done. This being the said Notice of Motion before this court is dated 7th May, 2008.
The applicant failed to file a fresh statement and fresh affidavit to accompany the Notice of Motion but instead appended the same ones utilized when requesting for leave. This then means that the substantive motion is unsupported. In applications for judicial review the Statement of Fact and the Verifying Affidavit constitute the pleadings. The prayers sought in the Statement should also be the same as those set out in the substantive motion.
The statement contains the grounds upon which the application is brought and the reliefs/prayers sought, whilst the affidavit contains the evidence.
The Statement and Verifying Affidavit cannot even be amended suo moto or otherwise because both are unrelated to the present application and are annexures/appendages.
In the absence of the accompanying Statement of Facts and the Verifying Affidavit the Notice of Motion is nothing but a heading.
I find that the Notice of Motion is incompetent and does not comply with Order 53 as there is no evidence to support the Notice of Motion.
The same is hereby struck out. Each party to bear their own costs.
Dated and Delivered at Eldoret this 20Th day of January 2012.
A.MSHILA
JUDGE