Emily Wanyama Wasike v Attorney General & Francis M Marko [2010] KEHC 2425 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

CIVIL MISCELLEANOUS APPLICATION 70 OF 2002

IN THE MATTER OF AN APPLICATION BY EMILY WANYAMA WASIKE FOR AN ORDER OF CERTIORARI:

AND

IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT, 1990

BETWEEN

EMILY WANYAMA WASIKE::::::::::::::APPLICANT

~VRSHON. ATTORNEY GENERAL::::::::::::::RESPONDENT

AND

FRANCIS M. MARKO::::::::::::::INTERESTED THIRD PARTY

RULING

This is a ruling on the application dated 20/9/2002 brought by the Interested Party Francis M. Marko.It was heard by Justice Mitey on 10/07/03. The Judge thereafter retired before delivering the ruling.I have now taken over this file for purposes of writing and delivering the ruling.

The application is brought under Order VI A Rule 3, Order XLIV rules 1 and 2 and Order 53 Rule 6 of the Civil Procedure Rules.It seeks for review of the court’s orders given on 28/8/2002. It also seeks for striking out of the motion filed pursuant to that order.The grounds supporting the applicationare contained in the Applicant’s affidavit and on the face of the application.Briefly, the Applicant herein alleges that the Respondent secretly and mischievously obtained the orders in issue andwithout notifying the other party, filed another application.It is claimed that the orders obtained therein are erroneous given the fact that the Respondent’s earlier proceedings had been struck out.

The application was opposed by the Respondent relying on his grounds of opposition dated 4/10/2002 and filed the same day.The Respondent contends that this application is a delaying tactic and that the court has an unfettered discretion to grant the orders sought.The Applicant should not be allowed to continue enjoying benefits accruing from an illegality.

The brief background of this matter is that the Respondent was granted leave to file a judicialreview application within 21 days.The orderswere granted and the 21 days period was to expire on 2/5/2002. The Respondent filed the application a week later which the court dismissed.The Applicant later filed another motion dated 19th July 2002 seeking for extension of time to file a fresh judicial review application.The application was heard exparte and orders granted on the 28th August 2002. The Applicantis now aggrieved by the said orders.

The said orders were granted by Justice Mbito J. after hearing the Respondent’s advocate.Order XLIX Rule 5 under which that application was brought gives the court the discretion to enlarge time where a limited time had been fixed and has expired.The court extendedthe time given earlier with ten (10) days.The orders given were in exercise of the discretion of the court.The Judge was satisfied that the respondent had good grounds to justify exercise of the discretion.

This application is brought under Order XLIV rules 1 and 2. rule 1 requires that the Applicant who is aggrieved by the order for which he seeks review must have discovered new and important facts or an error or mistake on the face of the record.The Applicant has not satisfied anyof those requirements.Rule 2 provides that an application for review, be done by the Judge who gave the orders sought to be reviewed.Justice Mbito had left the stationon transfer when Justice Miteyheard this application in 2003. I am now writing the ruling seven (7) years after the application was heard.This is not a mistake of any of the parties and it presents some difficult in attempting to review the orders of the Judge unless there are very sound grounds to do so.The substantive application for judicial review was allowed by the Judge which I believe is in the interestsof justice so that both parties can be heard in the matter.

I am convinced that the application has no meritand I dismiss it accordingly.Due to the fact that the applicant herein was not served with the applicationwhich gave riseto the orders of 28/08/2002, I hereby order that the Respondent meets the costs of this application.

F. N. MUCHEMI

JUDGE

Dated, Delivered and Signed at Bungoma this 29thday of April, 2010.

In the presence of Mr. Makokha for the Exparte Applicant.