[2011] KEHC 231 (KLR)
The court found that the application for certiorari was necessitated by the actions of the interested party, who initiated proceedings before the Land Disputes Tribunal without serving the applicant. As the applicant succeeded in quashing both the Tribunal's award and the Magistrate's adoption of the award, and...
Source-derived case information.
- Citation
- [2011] KEHC 231 (KLR)
- Parties
- Applicant: Republic; Respondent: Naivasha Land Disputes Tribunal; Respondent: Naivasha Senior Principal Magistrate’s Court; Interested Party: Peter Kaara Mwaura; Subject: John Richard Githere
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 22 of 2011
- Procedural Posture
- Judicial Review Application / Ruling on Notice of Motion for Certiorari and Costs
- Outcome
- Application for certiorari granted; costs awarded to applicant against interested party.
- Judges
- DO Ohungo
- Legal Topics
- Judicial Review, Certiorari, Land Disputes Tribunal Awards, Costs Award, Jurisdiction, Title Deed Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Naivasha Land Disputes Tribunal
Respondent
Naivasha Senior Principal Magistrate’s Court
Respondent
Peter Kaara Mwaura
Interested Party
John Richard Githere
Subject
Procedural Posture
Judicial Review Application / Ruling on Notice of Motion for Certiorari and Costs
Legal Issues
- 1 Whether the award of the Naivasha Land Disputes Tribunal and its adoption by the Magistrate's Court should be quashed by certiorari.
- 2 Whether the applicant is entitled to costs against the interested party.
Ratio Decidendi
The court found that the application for certiorari was necessitated by the actions of the interested party, who initiated proceedings before the Land Disputes Tribunal without serving the applicant. As the applicant succeeded in quashing both the Tribunal's award and the Magistrate's adoption of the award, and given that the applicant incurred costs in preparing and attending court, it was just and fair to award costs to the applicant. The court applied the principle that costs follow the event and found no special circumstances to depart from this rule. The orders of the Tribunal and the Magistrate's Court were quashed, and costs were awarded to the applicant against the interested party.
Court Disposition
Application for certiorari granted; costs awarded to applicant against interested party.
Orders
- The award of the Naivasha Land Disputes Tribunal made on 23/11/2010 is quashed.
- The order of the Principal Magistrate Court Naivasha in Misc. Application No.35 of 2010 made on 25/11/2010 and its decree issued on 10/12/2010 are quashed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
JUDICIAL REVIEW APPLICATION NO.22 OF 2011
REPUBLIC.......................................................................................................APPLICANT
VERSUS
NAIVASHA LAND DISPUTESTRIBUNAL.........................................1ST RESPONDENT
NAIVASHA SENIOR PRINCIPAL MAGISTRATE’S COURT............2ND RESPONDENT
AND
PETER KAARA MWAURA............................................................. INTERESTED PARTY
EXPARTE
JOHN RICHARD GITHERE...............................................................................SUBJECT
RULING
The Notice of Motion is dated 16/03/2011 seeking for orders of certiorari to quash the award of Naivasha Land Disputes Tribunalmade on 23/11/2010 awarding parcel No.153/10 No.Naivasha/Mwichingiri Block 4/3936 to Peter Kaara Mwaura and requiring the applicant to surrender his Title Deed in respect of the said parcel, for cancellation.
Further that the order do also apply to quash the order of the Principal Magistrate Court Naivasha in Misc. Application No.35 of 2010 made on 25/11/2010 and its decree issued on 10/12/2010, adopting the Award made by the Naivasha Tribunal.
The same was not contested, however applicant’s counsel applied for costs as against the interested party saying costs follows the event – here since the applicant has succeeded then he is entitled to costs, especially bearing in mind that it is the interested party who took the matter before the Land Disputes Tribunal and instituted proceedings without serving applicant.
The prayer for costs is opposed. Mr. Karanja for the interested party argues that his clients did not know about issues related to jurisdiction and ought to be excused from paying costs.
The application has been necessitated by actions instigated by the interested party. If the matter had proceeded to hearing, costs would have been awarded to the successful party. Applicant’s counsel has had to prepare his application to attend court – and it is only fair that the costs be awarded to the applicant and I so direct.
Delivered and dated this 11th day of November, 2011 at Nakuru.
H.A. OMONDI
JUDGE
Mr. Mutonyi for Applicant
N/A for Attorney General
Interested Party present in person