[2012] KEHC 5772 (KLR)
The court held that the application was fatally defective because the entities whose decisions were impugned—the Land Disputes Tribunal and the Senior Resident Magistrate—were not joined as parties to the proceedings. Since orders of certiorari and prohibition are only available against public bodies and not...
Source-derived case information.
- Citation
- [2012] KEHC 5772 (KLR)
- Parties
- Applicant: Eliphalet Mwathi Macharia; Respondent: Moore Naadokila; Respondent: Katimo Ole Nkukuu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 239 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- application dismissed with costs
- Judges
- SP Ouko
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Tribunal Jurisdiction, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliphalet Mwathi Macharia
Applicant
Moore Naadokila
Respondent
Katimo Ole Nkukuu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether orders of certiorari and prohibition can be issued against individuals rather than public bodies or tribunals.
- 2 Whether the application is fatally defective for failure to join the Tribunal and the Senior Resident Magistrate as parties.
- 3 Whether failure to serve the registrar and bring the application in the name of the Republic is fatal to the application.
Ratio Decidendi
The court held that the application was fatally defective because the entities whose decisions were impugned—the Land Disputes Tribunal and the Senior Resident Magistrate—were not joined as parties to the proceedings. Since orders of certiorari and prohibition are only available against public bodies and not individuals, and the respondents were merely beneficiaries of the Tribunal's decision rather than decision-makers, the reliefs sought could not be granted. The failure to join the proper parties rendered the application incompetent, and the preliminary objection was upheld on this ground alone, leading to the dismissal of the application with costs.
Court Disposition
application dismissed with costs
Orders
- The preliminary objection is upheld.
- The application is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAKURU
Miscellaneous Civil Application 239 of 2002
IN THE MATTER OF AN APPLICATION BY ELIPHALET MWATHI MACHARIA FOR LEAVE TO APPLY FOR AN ORDER OF PROHIBITION AND CERTIORARI)
AND
IN THE MATTER OF LAND DISPUTE CASE NO.4 OF 2001 BETWEEN ELIPHALET MWATHI MACHARIA AND MOORE NAADAKKA AND ANOTHER AND THE DECISION OF THE “THE TRIBUNAL COURT” SITTING AS LAND DISPUTES TRIBUNAL, MAU DIVISION
AND
IN THE MATTER OF NAROK SENIOR RESIDENT MAGISTRATE MISC. LAND APPLICATION NO.3 OF 2002
BETWEEN
REPUBLIC……………….…..…………………………………………..EX-PARTE
VERSUS
ELIPHALET MWATHI MACHARIA……………..…………………….APPLICANT
AND
MOORE NAADOKILA…………………………………………1ST RESPONDENT
KATIMO OLE NKUKUU…………………………………….....2ND RESPONDENT
RULING
The applicant brought a motion for judicial review seeking that the decision of the Land Dispute Tribunal, Mau Division made on 18th May, 2002 be quashed by an order of certiorari. It is noted at this stage that although in the chamber summons for leave to institute these proceedings the applicant also sought an order of prohibition to stop the Narok SRM court from adopting the decision of the Tribunal that relief is not included in the motion. The motion is based on the grounds that the Tribunal lacked or exceeded jurisdiction to entertain the dispute as the land in question was registered in the name of the applicant and that the Tribunal’s decision amounted to determining the ownership of the land; that the applicant was not given a hearing; that the Tribunal was not properly constituted.
Those named as the respondents who ought to have been joined as interested parties, are Moore Naadokila and Katimo Ole Nkukuu. Moore Naadokila, has through counsel raised a preliminary objection in which it is argued that the reliefs sought are not available against the respondents without the Tribunal and the Senior Resident Magistrate, Narok being parties to the proceedings.
Parties filed submissions together with authorities. Counsel for the 1st respondent has raised three other points in the objection, namely:
i)that the registrar was not served as required by order 53 rule 1(3) of the Civil Procedure Rules;
ii)that the application was not brought in the name of the Republic and;
iii)that the order of prohibition cannot be issued in vain.
Of all the four grounds, the one in my view that is capable of disposing this matter is the very first one, namely that the entities whose decisions are impugned are not parties in these proceedings. Both orders of certiorari and prohibition are public law reliefs available only against public bodies and tribunals inferior to the High Court. They are not available against individuals as individuals.
There are only two respondents. They are sued because the Tribunal awarded to them the parcel of land in question. They made no decision capable of quashing by certiorari. They cannot adopt that decision. It is only the magistrate’s court that can. Without the Tribunal and the Senior Resident Magistrate being part of these proceedings the reliefs are incapable of being issued. It is noted that the notice of this objection was brought to the attention of the applicant’s counsel way back in 2004 but they choose to face it instead regularizing the above anomaly.
On that ground alone, the objection is upheld and this application fails and is dismissed with costs.
Dated, Signed and Delivered at Nakuru this 3rd day of August, 2012.
W. OUKO
JUDGE