[2011] KEHC 3030 (KLR)
The court determined that Misheck Mwilaria, having an interest in the subject parcels of land, was a necessary party to the judicial review proceedings. The failure to join and hear him before judgment would violate the principles of natural justice and fair hearing. Consequently, the court set aside the proceedings...
Source-derived case information.
- Citation
- [2011] KEHC 3030 (KLR)
- Parties
- Applicant: Elijah M’Maitai Chauri; Respondent: Tigania District Land Adjudication and Settlement Officer; Respondent: Attorney General; Respondent: Joshua Murungi Athinya; Respondent: Gideon Kiragu Ruthiri; Respondent: Misheck Mwilaria
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 87 of 2009
- Procedural Posture
- Judicial Review / Ruling on Participation of Interested Party and Setting Aside Proceedings
- Outcome
- Proceedings set aside; matter to be heard afresh with participation of newly joined interested party.
- Judges
- MM Kasango
- Legal Topics
- Judicial Review Procedure, Land Adjudication Disputes, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Elijah M’Maitai Chauri
Applicant
Tigania District Land Adjudication and Settlement Officer
Respondent
Attorney General
Respondent
Joshua Murungi Athinya
Respondent
Gideon Kiragu Ruthiri
Respondent
Misheck Mwilaria
Respondent
Procedural Posture
Judicial Review / Ruling on Participation of Interested Party and Setting Aside Proceedings
Legal Issues
- 1 Whether all interested parties, specifically Misheck Mwilaria, should be joined and heard before judgment is delivered in the judicial review application.
- 2 Whether the proceedings of 3rd March 2011 should be set aside to allow participation of the newly identified interested party.
Ratio Decidendi
The court determined that Misheck Mwilaria, having an interest in the subject parcels of land, was a necessary party to the judicial review proceedings. The failure to join and hear him before judgment would violate the principles of natural justice and fair hearing. Consequently, the court set aside the proceedings of 3rd March 2011 and ordered that Misheck Mwilaria be served with all relevant documents and joined as the 3rd interested party. The matter is to proceed only after his participation is secured, ensuring that all interested parties are heard before a final determination is made.
Court Disposition
Proceedings set aside; matter to be heard afresh with participation of newly joined interested party.
Orders
- The proceedings of 3rd March 2011 are set aside; costs of that day’s proceedings shall be in the cause.
- The ex parte applicant shall within 14 days serve all documents pertaining to this action, including replying affidavits, on Misheck Mwilaria, who shall henceforth be the 3rd interested party. The ex parte applicant shall file an amended Notice of Motion within 7 days reflecting Misheck Mwilaria as the 3rd...
Full Case Text
Judgment text and source record
28 paragraphs
JUDICIAL REVIEW
·All interested parties should participate in the hearing.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
JUDICIAL REVIEW NO. 87 OF 2009
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR A JUDICIAL REVIEW WRIT OF CERTIORARI
AND
IN THE MATTER OF THE LAW REFORM ACT, CAP 26 LAWS OF KENYA AND ORDER LIII OF THE CIVIL PROCEDURE RULES
AND
IN THE MATER OF THE PROCEEDINGS FINDINGS AND ORDER MADE ON 17TH SEPTEMBER 2009 IN OBJECTION NO. 1594 OVER LAND PARCEL NOS. 2940 AND 2925 SITUATED IN KIGUCHWA ADJUDICATION SECTION
BETWEEN
ELIJAH M’MAITAI CHAURI …………………………….……………………. EX PARTE APPLICANT
VERSUS
TIGANIA DISTRICT LAND ADJUDICATION AND
SETTLEMENT OFFICER …………………………............………....…………….. 1ST RESPONDENT
ATTORNEY GENERAL ……………………………..........……………..………… 2ND RESPONDENT
AND
JOSHUA MURUNGI ATHINYA …………………........…………..………. 1ST INTERESTED PARTY
GIDEON KIRAGU RUTHIRI …………………….......……………………. 2ND INTERESTED PARTY
RULING
The ex parte applicant by Notice of Motion dated 1st December 2009 seeks an order of certiorari to bring to this court for quashing the decision of the 1st respondent in objection number 1594 between the 1st and 2nd interested parties and the ex parte applicant over parcel numbers 2940 and 2925 situated at Kiguchwa adjudication section within Tigania East District. That Notice of Motion was argued before me on 3rd March 2011 and I reserved my judgment to today. However, when I handled another matter in this court being Petition High Court Meru No. 1 of 2011, where an injunction application had been filed and argued before me, I realized that there is a party by the name Misheck Mwilaria who is interested in the parcels of land the subject of this judicial review. Elijah M’Maitai is the ex parte applicant in this matter. In Petition High Court Meru No. 1 of 2011 Elijah sued Misheck. As stated before, on hearing the arguments in that petition, I formed the opinion that Misheck should be an interested party in this matter. I am of the view that Misheck ought to have been given an opportunity before judgment is delivered in this matter. It is for that reason that I had decided not to deliver judgment to day in this matter until Misheck has been heard. I therefore set aside the whole proceedings in this matter of 3rd March 2011 and I do order that the Notice of Motion dated 1st December 2009 be served upon Misheck Mwilaria.Once Misheck has been served and has filed his reply, the Notice of Motion may be re-fixed for hearing with the participation of Misheck. In summary I grant the following orders:-
1. The proceedings in this matter of 3rd March 2011 are hereby set aside. The costs of that day’s proceedings shall be in the cause.
2. The ex parte applicant shall within 14 days of today’s date serve all the documents pertaining to this action including replying affidavits on Misheck Mwilaria. Misheck Mwilaria shall henceforth be the 3rd interested party. To that end, the ex parte applicant shall file an amended Notice of Motion within 7 days from this date hereof reflecting the name of Misheck Mwilaria as the 3rd interested party.
3. The Notice of Motion which shall be amended when fixed for hearing must be with the participation of Misheck Mwilaria. To that end, the ex parte applicant must involve Misheck Mwilaria in the process of taking hearing dates or serving him with a hearing notice.
Dated, signed and delivered at Meru this 13th day of April 2011.
MARY KASANGO
JUDGE