[2006] KEHC 1878 (KLR)
The court held that the application for leave to apply for certiorari was brought outside the statutory six-month limitation period prescribed by section 9(3) of the Law Reform Act. The decision and proceedings of the Matungu Land Disputes Tribunal had already been adopted as a judgment of the court, and thus the...
Source-derived case information.
- Citation
- [2006] KEHC 1878 (KLR)
- Parties
- Applicant: Hadijah A. Wanjala; Applicant: Osenji Wanjala; Respondent: Matungu Land Disputes Tribunal
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 37 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review (certiorari)
- Outcome
- application struck out
- Legal Topics
- Judicial Review, Certiorari, Limitation Periods, Land Disputes Tribunal, Adoption of Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hadijah A. Wanjala
Applicant
Osenji Wanjala
Applicant
Matungu Land Disputes Tribunal
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review (certiorari)
Legal Issues
- 1 Whether the application for leave to apply for certiorari was filed within the statutory six-month limitation period.
- 2 Whether the decision of the Matungu Land Disputes Tribunal could be challenged after its adoption as a judgment of the court.
- 3 Whether the applicants had an alternative remedy by way of appeal to the Provincial Appeals Committee.
Ratio Decidendi
The court held that the application for leave to apply for certiorari was brought outside the statutory six-month limitation period prescribed by section 9(3) of the Law Reform Act. The decision and proceedings of the Matungu Land Disputes Tribunal had already been adopted as a judgment of the court, and thus the tribunal's decision no longer existed as a separate entity capable of being quashed. The operative judgment was entered on 18th December 2003, and the application for leave was filed on 29th April 2004, more than six months later. The applicants also failed to pursue an appeal to the Provincial Appeals Committee as required under section 8(1) of the Land Disputes Tribunals Act....
Court Disposition
application struck out
Orders
- The application for leave to apply for an order of certiorari is struck out.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Misc Appli 37 of 2004
IN THE MATTER OF AN APPLICATION BY HADIJAH WANJALA & OSENJI
WANJALA FOR LEAVE TO APPLY FOR ORDERS FOR JUDICIAL REVIEW
A N D
IN THE MATTER OF THE DECISION OF MATUNGU LAND DISPUTE TRIBUNAL
DATED 12TH MARCH, 2003 ON 18TH DECEMBER, 2003 CONCERNING LAND
PARCEL NO. WANGA/MATUNGU/1006
AND
IN THE MATTER OF KAKAMEGA CHIEF MAGISTRATE MISC. APPLICATION
NO. 59 OF 2003 EX-PARTE HADIJAH A. WANJALA & OSENJI WANJALA
R U L I N G
In their exparte application by chamber summons dated 29. 4.04, the applicants, Hadijah A. Wanjala and Osenji Wanjala, sought leave under Rule 1 of Order LIII of the Civil Procedure Rules to apply for an order of certiorari to bring into this court for quashing the decision and proceedings of Matungu Land Disputes Tribunal (affecting land title No. N. Wanga/Matungu/1006) ostensibly dated 12. 3.03 said to have been adopted as a judgment of the court on 18-12-2003 by the Resident Magistrate Court at Kakamega in C.M.C. Misc. Award No.59 of 2003. After its adoption, the said decision ceased to exist. It had became a judgment of the court on 18. 12. 03. What was in being as at the time the applicants made their application for leave was the judgment dated 18. 12. 03 in Kakamega C.M.C. Misc. Award case No.59 of 2003.
The time for challenging that judgment by way of judicial review was limited to six months under section 9(3) of the Law Reform Act, Chapter 26 of the Laws of Kenya. The section reads:-
“In the case of an application for order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired”.
It seems on the face of it that while the decision and proceedings of Matungu Land Disputes Tribunal sought to be quashed no longer existed at the time of the making of the application,, the judgment (entered in Kakamega C.M. Misc. Application No.59 of 2003) was more than 6 months before the application was brought. Therefore under the above section, the application was brought out of time. I observe that the applicants do not appear to have lodged appeal to the Provincial Appeals Committee under section 8(1) of the Land Disputes Tribunals Act (No.18 of 1990) against the decision of Matungu Land Disputes Tribunal
In the light of the foregoing, the application is struck out.
Dated, signed and delivered at Kakamega this 30th day of March 2006
G. B. M. KARIUKI
J U D G E