[2011] KEHC 397 (KLR)

NO.267

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

MISCELLANEOUS CIVIL APPLIC. NO. 33 OF 2011

IN THE MATTER OF: AN APPLICATION BY DENIS OTUOMA OJIJO FOR ORDERS OF JUDICIAL REVIEW IN THE NATURE OF MANDAMUS

AND

IN THE MATTER OF: SECTION 7 (2) OF THE LAND DISPUTES

TRIBUNALS, ACT NO. 2 OF 1990 KENYA

AND

IN THE MATTER OF: SECTION 8 & 9 OF THE LAW REFORM ACT,

CAP 26, LAWS OF KENYA

AND

IN THE MATTER: OF SECTION 165 OF THE CONSTITUTION OF

KENYA, 2010

AND

IN THE MATTER OF: RESIDENT MAGISTRATE’S COURT AT OYUGIS

BETWEEN

REPUBLIC …………………………………….........…......…………… APPLICANT

VERSUS

THE RESIDENT MAGISTRATEOYUGIS LAW COURTS …….. 1ST RESPONDENT

THE HONOURABLE ATTORNEY GENERAL …...................….. 2ND RESPONDENT

AND

SAMUEL OGOLO OTUOMA …....................... INTERESTED PARTY/RESPONDENT

AND

.EX-PARTE

.DENIS OJIJO OTUOMA

RULING

1. The Ex-parte Applicant, Denis Otuoma Ojijo has moved this honourable court vide the chamber summons dated 29th March 2011 for an order in terms of prayer (2) thereof, namely an order of Judicial Review in the nature of mandamus directed unto the Respondents herein to compel the magistrate/Magistrate’s court at Oyugis to adopt the decision of the Land Disputes Tribunal dated 5th October 2010, and enforce the said decision as if it were a judgment of the said Resident Magistrate’s court in accordance with the mandatory provisions of section 7 (2)of the Land Disputes Tribunals Act, No.18 of 1990.

2. The application is supported by the grounds on the face thereof, the main one being that the honourable Resident Magistrate Oyugis Law Courts, vide its ruling dated 1st February 2011 declined to adopt the award of the Tribunal as by law mandated. The application is also grounded on the Supporting Affidavit sworn by Denis Ojijo Otuoma on 29th March 2011. The deponent reiterates the averments found on the face of the application and urges this court to allow the application as prayed. There is also the Statement of Facts and Verifying Affidavit of the applicant to support the application.

3. The application was opposed vide the Grounds of Opposition dated 3rd May 2010 filed on behalf of the Interested Party. First it was contended that the application does not lie because the Senior Resident Magistrate’s court at Oyugis has already made a ruling refusing to adopt the Tribunal’s award as an order of the court. What the applicant should have done is to seek for an order of certiorari and not mandamus to bring before this court the decision of the said court for quashing. It was further submitted that the authorities relied upon by the applicant, which authorities I have carefully considered, are properly concerned with issues of certiorari and not mandamus.

4. For the avoidance of doubt in this matter, sections 7and section 8of the Land Disputes Tribunals Act, No.18 of 1990provide as follows:-

“7 (1) The chairman of the Tribunal shall cause the

decision of the tribunal to be filed in the

magistrate’s court together with any

depositions or documents which have been

taken or proved before the tribunal.

(2) The court shall enter judgment in accordance

with the decision of the tribunal and upon

judgment being entered a decree shall issue

and shall be enforced in the manner

provided under the Civil Procedure Act.

8 (1) Any party to a dispute under section 3 who is

aggrieved by the decision of the Tribunal

may, within thirty days of the decision,

appeal to the Appeals Committee constituted

for the Province in which the land which is

the subject matter of the dispute is situated.

(2) The appeal shall be registered in a register of

appeals in the same manner as the register

of claims under section 3 (3); and a notice

thereof shall be served on the other party or

parties to the dispute in the same manner as

provided in sub section (4) of section 3.

(3) The appeal shall be in documentary form and

shall contain a brief statement, to be divided

into separate grounds of appeal, of the

reasons upon which the party appealing

wishes to rely.

(4) The appeal shall then be set down for

hearing by the Appeals Committee at a date,

time and place to be notified to the parties

thereto.

(5) The appeal shall then be determined by the

Appeals Committee, which shall consist of

three members appointed under section 9.

(6) At the hearing of the appeal, the party

bringing the appeal shall begin.

(7) After giving each party an opportunity to

state his case the Appeals Committee shall

determine the appeal giving reasons for its

decision.

Provided that the Committee may in its

discretion permit the party appealing

to reply to the other party’s

submission if that submission contains

any new matter not previously

introduced at the hearing or on the

appeal.

(8) The decision of the Appeals Committee shall

be final on any issue of fact and no appeal

shall lie therefrom to any court.

(9) Either party to the appeal may appeal from

the decision of the Appeals Committee to the

High Court on a point of law within sixty days

from the date of the decision complained of:

Provided that no appeal shall be

admitted to hearing by the High Court

unless a Judge of that Court has certified

that an issue of law (other than

customary law), is involved.

(10) A question of customary law shall for all

purposes under this Act be deemed to be a

question of fact.”

5. The purpose of a mandamus application is to issue a command so as to arrest a situation where there is a duty of a public or quasi – public nature, or a duty imposed by statute; it compels the fulfillment of a duty where there is lethargy on the party of a body or officer concerned.Like certiorari and prohibition, an order of mandamus would issue so as to right a recognizable public law wrong such as unlawfulness, unreasonableness or unfairness. See“An Outline of Judicial Review in Kenya: P.L.O. Lumumba, 1999. ”

6. As is clear in this case, the Senior Resident Magistrate’s Court did not enter judgment in accordance with the decision of the Tribunal, but instead made a ruling refusing to enter judgment. What should ordinarily follow then is for the applicant herein to seek the leave of this honourable court to bring into court the said decision for purposes of being quashed, if it appears to the applicant herein that the process adopted by the said court in reaching the said decision/ruling was questionable. The procedure adopted by the applicant for the present application therefore cannot lie.

7. I have considered the authorities relied upon by the applicant in this case and note that the said authorities are clearly distinguishable from the present case. In Misc. Application No.47 of 2004 – Harrison Ndungu –vs.- Nakuru CM’s Court & another [2005] e KLR, the issue before the court was an application for the Judicial Review orders of certiorari and prohibition to have the proceedings before the CM’s court at Nakuru in NakuruCMC Land Dispute No. 7 of 2002 – Kimunya Kamemia –vs.-Harrison Ndungu Kungu and particularly the order relating to the reading and adoption of the award made by Bahati Land Disputes Tribunal in its Land Disputes Tribunal Case 47 of 2002 brought to the High Court for quashing. That is the kind of application which the applicant herein should have brought, to question the ruling by the court at Oyugis refusing to adopt the award as a judgment of the court. That was also the position in Misc. Civil Application No.14 of 2009 – R. –vs.- Ng’arua Land Disputes Tribunal & another [2010] e KLR. This latter case dealt with the issue of leave to bring the judicial review proceedings, where it was argued that the leave had been sought and obtained outside the 6 months’ window fixed by law. The two authorities are therefore irrelevant in the circumstances of this case.

8. In conclusion, and without going into further detail, this application is bad in law is incompetent and cannot stand. The same is hereby dismissed with costs to the Interested Party.

9. It is so ordered.

Dated and delivered at Kisii this 04th day of November,2011

RUTH NEKOYE SITATI

JUDGE.

In the presence of:

Mr. Nyachae for O.M. Otieno (present) for Ex-parte Applicant

Mr. Ochoki for Bosire Gichana (present) for Interested Party

N/A for Respondents

Mr. Bibu - Court Clerk

RUTH NEKOYE SITATI

JUDGE.