[2011] KEHC 1542 (KLR)
The court held that the application for leave to apply for judicial review orders of certiorari and prohibition was fatally defective as it was filed outside the six-month limitation period prescribed by Order 53 rule 2 of the Civil Procedure Rules. The decision sought to be quashed was made on 9th September 2004,...
Source-derived case information.
- Citation
- [2011] KEHC 1542 (KLR)
- Parties
- Applicant: Republic; Respondent: The Senior Magistrate, Kerugoya Law Courts; Interested Party: Waguama Munyiri; Ex Parte Applicant: Munyiri Muriuki
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 52 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review Orders of Certiorari and Prohibition
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Tribunal Jurisdiction, Limitation Periods, Registered Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Senior Magistrate, Kerugoya Law Courts
Respondent
Waguama Munyiri
Interested Party
Munyiri Muriuki
Ex Parte Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review Orders of Certiorari and Prohibition
Legal Issues
- 1 Whether the application for leave to apply for judicial review orders of certiorari and prohibition was filed within the statutory time limit.
- 2 Whether the Land Disputes Tribunal had jurisdiction under section 3(1) of the Land Disputes Tribunal Act to determine disputes concerning ownership or subdivision of registered land.
- 3 Whether the adoption of the Tribunal award and issuance of decree by the Senior Resident Magistrate's Court was lawful.
Ratio Decidendi
The court held that the application for leave to apply for judicial review orders of certiorari and prohibition was fatally defective as it was filed outside the six-month limitation period prescribed by Order 53 rule 2 of the Civil Procedure Rules. The decision sought to be quashed was made on 9th September 2004, and the application was brought in 2011, well beyond the statutory period. The court further noted that it lacked the power to grant leave in such circumstances, regardless of the merits of the underlying challenge to the Tribunal's jurisdiction. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for leave to apply for judicial review orders of certiorari and prohibition is dismissed with costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. CIVIL APP. NO. 52 OF 2011
IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL GICHUGU DIVISION
KIRINYAGA WEST DISTRICT
WAGUAMA MUNYI – VERSUS- MUNYIRI MURIUKI
(LAND DISPUTE NO. 56 OF 2004)
AND
IN THE MATTER OF PROVINCIAL LAND APPEAL COMMITTEE NYERI
LAND DISPUTE TRIBUNAL CLAIM NO. KIRINYAGA 2/05
WAGUAMA MUNYI –VERSUS- MUNYI MURIUKI
IN THE MATTER OF SENIOR RESIDENT MAGISTRATE’S COURT , AWARD NO.55 OF 2004, KERUGOYA LAW COURTS
WAGUAMA MUNYIRI –VERSUS- MUNYIRI MURIUKI
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION
BETWEEN
REPUBLIC ……………………………………………………………… APPLICANT
VERSUS
THE SENIOR MAGISTRATE, KERUGOYA LAW COURTS......……RESPONDENT
WAGUAMA MUNYIRI ……....………………………………. INTERESTED PARTY
MUNYIRI MURIUKI …………....………………………… EX-PARTE APPLICANT
R U L I N G
The ex-parte Applicant is the registered proprietor of BARAGWI/GUAMA/277 comprising of about 5 acres. He has two wives, one of whom is the Interested Party. The Interested Party went to Gichugu Land Disputes Tribunal seeking a portion of that land. On 9th of September 2004, the Tribunal reached a decision that the Ex-parte Applicant was to give each of his wives two acres and he be left with one acre. The matter went to the Province on appeal but the decision was upheld. On 29th March 2011, the SRM’s Court at Kerugoya adopted the award and subsequently issued a decree. This is what led to the ex-parte Applicant’s application before this court in which he sought leave to apply for the Judicial Review orders of Certiorari and Prohibition. The order of Certiorari targets the adoption of the award and the issuance of decree by the SRM’s court. In the statement of facts it is clear that it is the primary decision of the Tribunal that offended the ex-parte Applicant. It was stated that the Tribunal lacked jurisdiction under section 3(1) of the Land Disputes Tribunal Act (No.18 of 1990) to entertain a dispute regarding the ownership of a registered land or the sub-division of the same. The manner in which the present application is couched is such that the prayer for leave or stay is not directed at the Tribunal.
Under Order 53 rule 2 of the Civil Procedure Rules an application for leave for Certiorari cannot be brought after 6 months from the date of the decision sought to be quashed. (WILSON OSOLO –V- JOHN OJIAMBO OCHOLA & ANOTHER, CIVIL APPEAL NO. 6 OF 1995). This court does not have the power to grant leave in the circumstances. The application is dismissed with costs.
DATED, SIGNED AND DELIVERED AT EMBU THIS 7th DAY OF SEPTEMBER 2011.
A.O. MUCHELULE
JUDGE