[2021] KEELC 4400 (KLR)
The court found that while it could grant leave to apply for an order of mandamus, the application as framed was contradictory and improperly constituted. Specifically, the applicants sought substantive relief (an order of mandamus directed to the OCPD, Chuka) at the leave stage without having obtained leave to...
Source-derived case information.
- Citation
- [2021] KEELC 4400 (KLR)
- Parties
- Applicant: Tigania David Mwiriga; Applicant: Mugambi David; Respondent: Sub County Surveyors Tharaka Nithi County; Respondent: District Land Registrar Tharaka Nithi County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E001 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons Seeking Leave for Judicial Review (mandamus) and Declarations
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Mandamus, Leave to Apply, Land Administration, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tigania David Mwiriga
Applicant
Mugambi David
Applicant
Sub County Surveyors Tharaka Nithi County
Respondent
District Land Registrar Tharaka Nithi County
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons Seeking Leave for Judicial Review (mandamus) and Declarations
Legal Issues
- 1 Whether the applicants are entitled to leave to apply for an order of mandamus against the respondents.
- 2 Whether the application as framed is competent and properly before the court.
- 3 Whether the court can grant an order of mandamus directed to the OCPD, Chuka at this stage.
Ratio Decidendi
The court found that while it could grant leave to apply for an order of mandamus, the application as framed was contradictory and improperly constituted. Specifically, the applicants sought substantive relief (an order of mandamus directed to the OCPD, Chuka) at the leave stage without having obtained leave to apply for such an order. The court held that this was procedurally irregular and amounted to an oxymoron, as the application mixed requests for leave with substantive orders. Consequently, the application was dismissed for being incompetent, with the court advising the applicants to file a proper application if they wished to pursue the matter further. No costs were awarded.
Court Disposition
application dismissed
Orders
- The application dated 6th January, 2021 is dismissed.
- No costs are awarded.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC MISCELLANEOUS CASE NO. E001 OF 2021
TIGANIA DAVID MWIRIGA ..................................................................1ST APPLICANT
MUGAMBI DAVID...................................................................................2ND APPLICANT
VERSUS
SUB COUNTY SURVEYORS THARAKA NITHI COUNTY..........1ST RESPONDENT
DISTRICT LAND REGISTRAR THARAKA NITHI COUNTY....2ND RESPONDENT
RULING
1. The Chamber Summons in this matter is dated 6th January, 2021 and seeks leave to apply for orders, of inter alia, mandamus and several declarations that the court finds the constitutional rights of the applicants have been violated.
2. The application in its prayer 2 seeks an order of mandamus to compel the Officer Commanding Police Division (OCPD), Chuka, to help in enforcing the orders to be issued by the court.
3. The applicants do not say that their application is a Constitutional Petition. They also do not directly state that their application constitutes Judicial Review Proceedings. Whereas the court can grant prayer 1(a) for leave to apply for an order of mandamus, it cannot grant prayer 2 and issue an order of mandamus directed to the OCPD, Chuka at this stage. From the way it is framed, this application constitutes prayers which evince a veritable contradiction in terms. It is an oxymoron! Especially for prayer 2, no leave to apply for it had been obtained.
4. The applicants may consider filing a proper application in court.
5. In the circumstances:
a) This application stands dismissed.
b) No costs are awarded.
Delivered in open court at Chuka this 15th day of February, 2021 in the presence of:
CA: Ndegwa
Miss Materu for the applicants
HON. JUSTICE (Dr.) P. M. NJOROGE,
ELC JUDGE.