[2009] KEHC 1136 (KLR)
The court found that the applicant failed to state the date of the decision he sought to quash by certiorari, and from the affidavit, the decision appeared to have been made in 1990. Under Order LIII Rule 2 of the Civil Procedure Rules, leave to apply for certiorari cannot be granted more than six months after the...
Source-derived case information.
- Citation
- [2009] KEHC 1136 (KLR)
- Parties
- Applicant: Silas Kinyua M'Mweti; Respondent: District Land Adjudication and Settlement Officer, Igembe North District; Respondent: Director, Land Adjudication and Settlement; Respondent: Senior Principal Magistrate's Court at Maua
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 46 of 2009
- Procedural Posture
- Judicial Review / Ruling on Leave to Apply for Judicial Review Orders
- Outcome
- Partial grant of leave to apply for mandamus; all other prayers refused.
- Judges
- MM Kasango
- Legal Topics
- Judicial Review Orders, Land Adjudication, Customary Law of Inheritance, Certiorari Mandamus Prohibition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Kinyua M'Mweti
Applicant
District Land Adjudication and Settlement Officer, Igembe North District
Respondent
Director, Land Adjudication and Settlement
Respondent
Senior Principal Magistrate's Court at Maua
Respondent
Procedural Posture
Judicial Review / Ruling on Leave to Apply for Judicial Review Orders
Legal Issues
- 1 Whether leave should be granted to apply for orders of certiorari, mandamus, and prohibition against the respondents.
- 2 Whether the application for certiorari is time-barred under Order LIII Rule 2 of the Civil Procedure Rules.
- 3 Whether the applicant has established grounds for an order of prohibition to stop criminal proceedings.
Ratio Decidendi
The court found that the applicant failed to state the date of the decision he sought to quash by certiorari, and from the affidavit, the decision appeared to have been made in 1990. Under Order LIII Rule 2 of the Civil Procedure Rules, leave to apply for certiorari cannot be granted more than six months after the decision. Therefore, the application for certiorari was time-barred. The court also held that the prayer for prohibition to stop the criminal trial had no basis, as the issues raised could be addressed as a defence in the criminal proceedings. However, the court found merit in the prayer for leave to apply for an order of mandamus, as the applicant had established a prima facie...
Court Disposition
Partial grant of leave to apply for mandamus; all other prayers refused.
Orders
- Leave is granted to the ex parte applicant to file for an order of mandamus as prayed in prayer No. 2 of chamber summons dated 24/6/2009.
- All other prayers, including for certiorari, prohibition, and stay, are refused.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
JUDICIAL REVIEW 46 OF 2009
IN THE MATTER OF THE LAND CONSOLIDATION ACT, CAP 283 OF THE LAWS OF KEN
AND
IN THE MATTER OF THE LAND ADJDUCATION ACT, CAP 284 OF THE LAWS OF KENYA
AND
IN THE MATTER OF THE MERU CUSTOMARY LAW OF INHERITANCE
AND
IN THE MATTER OF LAND PARCEL NUMBER 1541 & 1641 AKIRANGONDU “A” ADJUDICATION SECTION
AND
IN THE MATTER OF THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MAUA CRIMINAL CASE NUMBER 1464 OF 2009
(Republic Vrs Silas Kinyua)
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT, CAP 26 OF THE LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION
BETWEEN
SILAS KINYUA M’MWETI ………………………. APPLICANT
VERSUS
THE DISTRICT LAND ADJDUCATION AND SETTLEMENT
OFFICER, IGEMBE NORTH DISTRICT ….. 1ST RESPONDENT
THE DIRECTOR, LAND ADJUDICATION AND
SETTLEMENT ……………………………….. 2ND RESPONDENT
THE SENIOR PRINCIPAL MAGISTRATE’S COURT
AT MAUA ……………………………………… 3RD RESPONDENT
AND
CONSOLATA KABUTIA M’MWETI … 1ST INTERESTED PARTY
M’MUJURI THILANGE ……………….. 2ND INTERESTED PARTY
SILAS MURIUKI KARITHO ………….. 3RD INTERESTED PARTY
THIURI M’MUKARIA ………………….. 4TH INTERESTED PARTY
HENRY KIBARA ………………………. 5TH INTERESTED PARTY
JULIUS KATHERU ……………………. 6TH INTERESTED PARTY
JOSEPH MUTUMA …………………… 7TH INTERESTED PARTY
IRUKI M’KAIRIAMA ……..…………… 8TH INTERESTED PARTY
FATHER MUTHOMI (In charge of K.K. Catholic, Catholic
Diocese of Meru, Tuuru Parish) …… 9TH INTERESTED PARTY
GEOFFREY MANYORE ……….…… 10TH INTERESTED PARTY
RULING
The ex parte applicant has moved the court by chamber summons dated 24th June 2009. The application seeks leave to apply for an order of certiorari, an order of mandamus and an order of prohibition. He then prays that the leave granted do operate as stay.
From the verifying affidavit of the applicant, it is clear that the background of this matter began from the time the lands in Kenya were consolidated and demarked. The land in question 1541 AKIRANGONDU ‘A’ ADJUDICATION SECTION formerly belonged to the ex parte applicant’s father who is now deceased. That land was in 1990 transferred by the applicant’s mother (1st interested party) to 2nd interested party. It was then when the woes of the applicant began. The 2nd respondent transferred his interest in that land to the 3rd interested party. There was a portion of land that remained after the said transfers from the original land which the 1st interested party sold to 4th, 5th, 6th, 7th, 8th, 9th and 10th interested parties. The ex parte applicant has variously tried to use the influence of the administration to reverse those transfers in vain. He has been charged before criminal courts with acts attributed to him done on the said parcels of land. Hence why he seeks an order of prohibition to stop Criminal Case No. 1464 of 2009. He seeks order for certiorari to quash the decision of District Land Adjudication and Settlement officer. He does not state anywhere when that decision was made. I have considered the application and the affidavits on record. Leave to file an order of certiorari cannot be sought more than 6 months after the decision sought to be quashed was made. See O.LIII Rule 2 of the Civil Procedure Rules. The ex parte applicant failed to state the date of the decision he seeks to quash, but from reading his affidavit, that decision could well have been in 1990. Leave to file for certiorari cannot in view of that Rule be granted. The order of prohibition to step the criminal trial has no basis either. The issues raised by the applicant can very well be the defence he offers at that trial. The prayer for leave to file for prohibition will also not be granted. From the evidence, the ex parte applicants provided before court the only prayer which I find merited is for leave to file for an order of mandamus.The other prayers even for stay are not merited. The order of the court is that this court does grant leave to the ex parte applicants to file for an order of mandamusas prayed in prayer No. 2 of chamber summons dated 24/6/2009. The costs of that chamber summons shall be in the cause.
Dated and delivered at Meru this 8th day of October 2009.
MARY KASANGO
JUDGE