[2011] KEHC 3423 (KLR)
The court found that the applicants had established sufficient grounds for the grant of leave to apply for an order of certiorari. The Soin Land Disputes Tribunal, as the 3rd Respondent, appeared to have made a decision beyond its statutory powers under Section 3 of the Land Disputes Tribunals Act, specifically by...
Source-derived case information.
- Citation
- [2011] KEHC 3423 (KLR)
- Parties
- Applicant: Samwel Rop; Applicant: Richard Rop; Applicant: Leah Rotich; Respondent: Musa Rop; Respondent: Jane Chemutai Rop; Respondent: Soin Land Disputes Tribunal; Respondent: Senior Principal Magistrate’s Court at Kericho
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 9 of 2010
- Procedural Posture
- Judicial Review Application / Ruling on Leave to Apply for Certiorari
- Outcome
- Leave to apply for certiorari granted; leave to operate as stay of impugned decisions.
- Legal Topics
- Judicial Review, Certiorari, Tribunal Jurisdiction, Land Title Disputes, Ultra Vires Decisions, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Rop
Applicant
Richard Rop
Applicant
Leah Rotich
Applicant
Musa Rop
Respondent
Jane Chemutai Rop
Respondent
Soin Land Disputes Tribunal
Respondent
Senior Principal Magistrate’s Court at Kericho
Respondent
Procedural Posture
Judicial Review Application / Ruling on Leave to Apply for Certiorari
Legal Issues
- 1 Whether the Soin Land Disputes Tribunal acted beyond its statutory powers under Section 3 of the Land Disputes Tribunals Act.
- 2 Whether the adoption of the Tribunal's award by the Senior Principal Magistrate’s Court at Kericho was valid.
- 3 Whether leave to apply for an order of certiorari should be granted and whether such leave should operate as a stay of the impugned decisions.
Ratio Decidendi
The court found that the applicants had established sufficient grounds for the grant of leave to apply for an order of certiorari. The Soin Land Disputes Tribunal, as the 3rd Respondent, appeared to have made a decision beyond its statutory powers under Section 3 of the Land Disputes Tribunals Act, specifically by making determinations relating to land titles, which are outside its jurisdiction. The subsequent adoption of this award by the Senior Principal Magistrate’s Court at Kericho, the 4th Respondent, was therefore potentially invalid, as Rule 20 of the Land Disputes Tribunals (Forms and Procedures) Rules 1993 only envisages the adoption of valid awards. The court held that these...
Court Disposition
Leave to apply for certiorari granted; leave to operate as stay of impugned decisions.
Orders
- Leave is granted to the applicants to apply for an order of certiorari as prayed for in prayers (a) and (b) of the Chamber Summons dated 2nd March 2011.
- The leave granted shall operate as a stay of the decisions of the 3rd and 4th Respondents until the Notice of Motion is heard and determined or until further orders of the Court.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
JUDICIAL REVIEW NO. 9 OF 2010
IN THE MATTER OF APPLICATION FOR LEAVE TO COMMENCE JUDICIAL REVIEW
BETWEEN
SAMWEL ROP.........................................................................................1ST APPLICANT
RICHARD ROP........................................................................................2ND APPLICANT
LEAH ROTICH........................................................................................3RD APPLICANT
VERSUS
MUSA ROP...........................................................................................1ST RESPONDENT
JANE CHEMUTAI ROP......................................................................2ND RESPONDENT
SOIN LAND DISPUTES TRIBUNAL..................................................3RD RESPONDENT
SENIOR PRINCIPAL MAGISTRATE’SCOURT AT KERICHO........4th RESPONDENT
RULING
The three Applicants, Messrs Samuel Rop, Richard Rop and Leah Rotich, have sought leave to apply for an order of certiorari to remove into this court for quashing the decision of Soin Land Disputes Tribunal, the 3rd Respondent, relating to Land titles Nos: KERICHO/SOLIAT/12,13,22 and 46 and the decision of the 4th Respondent, namely, the Principal Magistrate Court at Kericho dated 25/2/2010 made in Misc. Civil App. No.5 of 2010 purporting to adopt as a judgment of the Court the decision of the 3rd Respondent.
I have duly perused the application and the Statement of Facts and the Verifying Affidavit filed herein. I have also considered the submission made by Mr. J.K. Kirui, the learned Counsel for the Applicants. I am satisfied that there are sufficient grounds to warrant the grant of the leave sought not least because the decision of the 3rd Respondent which the 4th Respondent adopted as a judgment of the Court was beyond the powers conferred on the 3rd Respondent by Section 3 of the Land Disputes Tribunals Act (No. 18 of 1990). It seems that the 4th Respondent adopted as a judgment of the Court an award that is alleged to be invalid. Rule 20 of the Land Disputes Tribunals (Forms and Procedures) Rules 1993 on the basis of which the 4th Respondent appears to have adopted the award/decision as a judgment envisages adoption of a valid award made in accordance with the law and not an award made ultra vires or beyond the plenitude of the powers conferred by Section 3 of the Land Disputes Tribunals Act, No. 18 of 1990.
Accordingly, I allow the application and grant, pursuant to Rule 1 (1) of Order 53 of the Civil Procedure Rules, leave to the applicants to apply for an order of certiorari as prayed for in prayers (a) and (b) of the Chamber Summons dated 2nd March 2011.
I direct that the leave herein granted shall operate as a stay of the decisions of the 3rd and 4th Respondents until the Notice of Motion to be filed as herein directed has been heard and determined or until further orders of this Court. If the Notice of Motion is not filed as directed, the stay shall lapse after the expiry of the period within which the Notice of Motion should be filed.
The Notice of Motion shall be filed within 21 days from today and shall be served within 14 days on the Respondents and all persons affected by it. It shall be mentioned on 6/6/2011 and seven days prior to the mention, the Applicants shall file an affidavit giving the names of those served, their addresses and places and times of service of the Notice of Motion including the names of those not served and the reason for non-service. A hearing date for the Notice of Motion shall be given on the mention date on 6/6/2011.
The costs of the application for leave shall be in the Notice of Motion.
DATEDat KERICHO this 16th Day of March, 2011
G B M KARIUKI, SC
RESIDENT JUDGE
COUNSEL APPEARING
Mr. J.K. Kirui, Advocate, for the Applicant
Mr. R. Koech, Court clerk