[2011] KEHC 2146 (KLR)
The court found that the applicant had established sufficient grounds for the grant of leave to apply for judicial review orders, primarily because the decision of the Konoin Land Disputes Tribunal appeared to have been made ultra vires the statutory powers conferred upon it by Section 3 of the Land Disputes...
Source-derived case information.
- Citation
- [2011] KEHC 2146 (KLR)
- Parties
- Applicant: Samwel Kipkoech Kilel; Respondent: Konoin Land Disputes Tribunal; Respondent: Sotik Principal Magistrate’s Court; Respondent: Raeli Meto; Respondent: Recho Meto
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 3 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to Apply for Judicial Review Orders
- Outcome
- Leave granted to apply for orders of certiorari and prohibition; leave to operate as stay; directions for filing and service of substantive motion.
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Ultra Vires Decision, Tribunal Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Kipkoech Kilel
Applicant
Konoin Land Disputes Tribunal
Respondent
Sotik Principal Magistrate’s Court
Respondent
Raeli Meto
Respondent
Recho Meto
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to Apply for Judicial Review Orders
Legal Issues
- 1 Whether the Konoin Land Disputes Tribunal acted ultra vires its statutory powers under Section 3 of the Land Disputes Tribunals Act No. 18 of 1990.
- 2 Whether leave should be granted to apply for orders of certiorari and prohibition against the Tribunal's decision and its adoption by the Magistrate's Court.
Ratio Decidendi
The court found that the applicant had established sufficient grounds for the grant of leave to apply for judicial review orders, primarily because the decision of the Konoin Land Disputes Tribunal appeared to have been made ultra vires the statutory powers conferred upon it by Section 3 of the Land Disputes Tribunals Act No. 18 of 1990. The court was satisfied that the applicant had demonstrated an arguable case warranting further inquiry at the substantive motion stage. Consequently, leave was granted to apply for orders of certiorari and prohibition, and the leave was ordered to operate as a stay of the Tribunal's decision and related proceedings until the Notice of Motion is filed and...
Court Disposition
Leave granted to apply for orders of certiorari and prohibition; leave to operate as stay; directions for filing and service of substantive motion.
Orders
- Leave granted to the applicant to apply for orders of certiorari and prohibition as prayed.
- Leave granted shall operate as a stay of the proceedings relating to the decision of Konoin Land Disputes Tribunal dated 16th December, 2010 until the Notice of Motion is heard and determined or until further orders of the court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CIVIL MISC. APPL. NO. 3 OF 2011 (JR)
SAMWEL KIPKOECH KILEL ……………………...................………….APPLICANT
VERSUS
KONOIN LAND DISPUTES TRIBUNAL …………..............… 1ST RESPONDENT
SOTIK PRINCIPAL MAGISTRATE’S COURT …..............…...2ND RESPONDENT
RAELI METO …………………………..................……… 1ST INTERESTED PARTY
RECHO METO ………………………….................……...2ND INTERESTED PARTY
RULING
The Applicant, SAMUEL KIPKOECH KILEL, seeks in his ex parte Notice of Motion dated 10th February, 2011, leave to apply for an order of certiorari to remove into this court for quashing the proceedings and decision of Konoin Land Disputes Tribunal dated 16th December, 2010. The Applicant also seeks leave to apply for an order of prohibition to prohibit the Sotik Principal Magistrate from adopting and enforcing the decision of Konoin Land Disputes Tribunal as a judgment or decree of the court.
I have perused the said application and the Statement of facts and the Verifying affidavit filed herein and I am satisfied that there are sufficient grounds made out for the grant of the leave sought not least because the decision sought to be quashed seems to have been made ultra vires the statutory powers vested in Konoin Land Disputes Tribunal by Section 3 of the Land Disputes Tribunals Act No. 18 of 1990.
Accordingly, I grant the Applicant pursuant to Order 53 Rule 1(1) of the Civil Procedure Rules leave to apply for orders of certiorari and leave apply for an order of prohibition as prayed for in prayers 2 and 3 of the application.
I further direct pursuant to Rule 1(4) of order 53 of the Civil Procedure Rules that the leave herein granted shall operate as a stay of the proceedings relating to the decision of Konoin Land Disputes Tribunal dated16th December, 2010 until the Notice of Motion to be filed as hereinafter directed has been heard and determined or until further orders of this court but in the event that the Notice of Motion is not filed as directed, the stay herein ordered shall lapse after the expiry of the period with which the Notice of Motion is required to be filed.
Pursuant to Rule 3(1)of Order 53 of the Civil Procedure Rules, I direct that the Applicant shall file in this court within twenty one (21) days of the date hereof a Notice of Motion and shall serve the same within fourteen (14) days of filing upon the Respondents and all those who may be affected by it.
The Notice of Motion shall be mentioned on 6th June, 2011 at 9. 00a.m. At least seven (7) days prior to 6th June, 2011, the Applicant shall file an affidavit pursuant to Rule 3(3) of Order 53 of the said Rules showing the names and addresses of the persons served with the Notice of Motion and the places and dates of service including the names of those not served and the reasons for non-service.
Directions and hearing date shall be given on 6th June, 2011. Costs of the application shall be costs in the Notice of Motion.
DATED at KERICHO this 23rd day of March, 2011
G.B.M. KARIUKI, sc
RESIDENT JUDGE
COUNSEL APPEARING
Mr. V.K. Bii Advocate for the Applicant
Mr. Koech - Court Clerk