HENRY OLE KIPELIAN, KIPUGEN OLE KIPELIAN & SINTERIA OLE KIPELIAN v CHAIRMAN OLOKURTO LAND DISPUTE TRIBUNAL, SENIOR PRINCIPAL MAGISTRATE NAROK, DISTRICT SURVEYOR, NAROK DISTRICT & LAND REGISTRAR, NAROK DISTRICT [2011] KEHC 4210 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

MISCELLANEOUS CIVIL APPLICATION NO. 5 OF 2011

HENRY OLE KIPELIAN................................................................................................1ST APPLICANT

KIPUGEN OLE KIPELIAN...........................................................................................2ND APPLICANT

SINTERIA OLE KIPELIAN...........................................................................................3RD APPLICANT

AND

THE CHAIRMAN OLOKURTOLAND DISPUTE TRIBUNAL..............................1ST RESPONDENT

SENIOR PRINCIPAL MAGISTRATE,NAROK.....................................................2ND RESPONDENT

THE DISTRICT SURVEYOR, NAROK DISTRICT...............................................3RD RESPONDENT

THE LAND REGISTRAR, NAROK DISTRICT......................................................4TH RESPONDENT

AND

GLADYS NASIEKU TAMOO.......................................................................1ST INTERESTED PARTY

DAVID LEPOSO TAMOO..........................................................................2ND INTERESTED PARTY

RULING

The applicants, Messrs Henry Ole Kipelian, Kipungen Ole Kipelian, and Sinteria Ole Kipelian have sought in their chamber summons application dated 20th January 2011, leave to apply for an order of certiorari to remove into this Court for quashing the judgment dated 20/7/2011 delivered by the 2nd Respondent, the Senior Principal Magistrate at Narok in Misc. land case No. 13 of 2010pursuant to the award of the 1st Respondent, the Olokurto Land Disputes Tribunal dated 10th April 2010.

The applicants also seek leave to apply for an order of Prohibition to prohibit the 3rd and 4th Respondents from implementing or enforcing the judgment and the award sought to be quashed.

The applicants also seek an order of stay.

I have perused the application and the Statement of facts and the Verifying affidavit. I have also duly considered the submissions made by Mr. W.R. Kiprono, the learned Counsel for the Applicants.

I am satisfied that the applicants have established that there are sufficient grounds to warrant the grant of the leave sought. The applicants have shown that the judgment of the 2nd Respondent was entered on the basis of an award of the 1st Respondent and that the said award was made by the 1st Respondent either in excess of its jurisdiction or without jurisdiction.

Under Section 9 of the Law Reform Act, Cap 26, the Applicants were enjoined to seek leave, as they have done, within six moths after the date of the 2nd Respondent’s judgment. Time under Section 9 of the Law Reform Act started to run on 21/7/2010. It seems to me that the applicants came to Court for leave in the nick of time. The six months period expired on 21/1/2011, or so it seems to me.

In the circumstances, I allow the applicants’ Chamber Summons application dated 20/1/2011 and grant, pursuant toRule 1 of Order 53 of Civil Procedure Rules 2010, leave to apply for the orders sought.

I order that the leave herein granted shall operate as a stay until the Notice of Motion to be filed as hereinafter directed is determined or until further orders of this court.

I direct that the Applicants shall file the Notice of Motion pursuant to Rule 3 of Order 53 of the Civil Procedure Rules 2010, within 21 days of today and shall within 21 days of filing serve the same on the Respondents named in the chamber summons for leave, and on all such persons as may be affected by it.

The Motion shall be filed in this file and shall be mentioned on 23/3/2011 at 9. 00am in this Court.

The costs of the application for leave shall be costs in the cause.

DATEDat KERICHO this 27th day of January 2011

G.B.M KARIUKI, SC

RESIDENT JUDGE

COUNSEL APPEARING

Mr. P. Kiprop, State Counsel, for the Republic

Mr. W. R. Kiprono, Advocate, for the Accused

Mr. R. Koech, Court clerk