Joab Shiundu Macheso v Ndivisi Land Disputes Tribunal & Principal Magistrate – Webuye [2013] KEHC 2510 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC. APPLICATION NO. 145 OF 2011

JOAB SHIUNDU MACHESO.....................................APPLICANT

VERSUS

NDIVISI LAND DISPUTES TRIBUNAL.........1ST  RESPONDENT

THE PRINCIPAL MAGISTRATE – WEBUYE..2ND RESPONDENT

RULING

The application dated 17th November 2011 seeks leave to apply for an order  of certiorari to remove into this honourable court and  quash the decision of Ndivisi Land Disputes Tribunal made on 19th May 2011 adopted as judgment of the court in  Webuye PMCC   land case no. 13 of 2011 on  21st October 2011.  The application is supported by affidavit  of Joab  Shiundu Macheso which has annexed the proceedings both of the Magistrates court and of the  Tribunal.

The application  was not  granted exparte as the judge ordered the interested party to be served.  The interested party filed his grounds of opposition which listed  4 grounds.

The parties presented  their arguments by way of written submissions.  The applicant  submits that he is the registered owner of  the suit parcel of land.  He relied on the cases of Kariuki vs. Attorney General [1990 – 1994] E.A which held  that  leave is granted where applicant demonstrates  he has a prima facie  case.  He also submitted that the award of the  tribunal is formally communicated to the parties at the time of  its reading in the magistrate's court.   Therefore  the time for  applying for Judicial Review started running  on 22nd October 2011.  The application  for leave was thus  filed  within time.

The interested party argued  otherwise.  He submits  the decision of the  Ndivisi Land Disputes tribunal was made on  19th May 2011 and application for leave  filed on 23rd November 2011  hence outside the six months period as provided for under Order  53  rule 2. He relied on the case of Wilson Osolo vs. John Ojiambo Ochola & another Civ. Appeal NO. 6 of 1995 in support of  this argument.  He submitted that though the application  was filed on  23. 11. 11, it was not served on the interested party until  28th June 2012 meaning it was treated  casually.  He urged the court to dismiss the application with costs.

I have had the opportunity to   read through the  file.  A look at the proceedings of the Land Disputes   Tribunal  forwarded to court shows the date of signing of the award as 19th May 2011. It does not show if   on  this date it was  also  read to the parties.  It was forwarded  to the court for adoption as is  required under Sec. 7 (2) of the  Land Disputes   Tribunal Act on the same date.  A  date of 23rd June 2011 was  fixed for the  reading of the award.  It was postponed for  one   reason or  another and it was not until 21st October 2011 when the award was finally read.

The  question  this court is asked to   determine is when  does time begin to   run? Is it when the award  is dated or when  it is adopted as an order of the court? Justice Khamoni in   Wamwea vs. Catholic Diocese of Muranga registered  Trustees, Nbi  Civ. Appeal No. 568 of 2000 e KLR  said that,

“adoption makes the  decision of the Tribunal   a decision of the  magistrate's court and as a result  the decision of  the tribunal ceases to  exist a separate entity challengeable  alone”.

This is confirmed further by  the provisions of  sec. 7 (2),

“ the court shall enter  judgment in  accordance with the decision of the Tribunal and upon judgment being    entered, a decree shall issue and  shall be enforceable in the manner provided for under the Civil Procedure Act".

My interpretation   of this section and the decision of the Learned judge, is the award  cannot be  executed unless it  is adopted  to be an order of the court.  Therefore  it is my finding that time begins to run from the  date of  adoption as that is when the award is read out to the parties. If it were to be looked at differently,  as some schools of  thought have  held that time  runs from the date of award, then it is mandatory that the tribunal notifies all parties of its decisions and   time then runs from the period when the parties are deemed notified of the award.  No such exercise/step  is indicated  that the award was  read out to parties on the  19th May 2011 or notices sent out in proceedings sought to be quashed.

This court having taken  the view that time runs from the date of adoption (reading) of the award, I make a finding that the application was made/brought within the time prescribed in law.  The same is allowed.The applicant to  file the substantive  motion within  21 days from date of delivery of this ruling.  The leave to  operate as stay in  any event.

RULING SIGNED this 3rd day of July and DELIVERED AND READ in open court this 4th day of July  2013.

A. OMOLLO

JUDGE.