Kipsoimo Kitur, Kipketer Murwon & Paul Sawe Kogo v Kwanza Land Disputes Tribunal, Erastus Samoei & 8 others [2015] KEHC 6645 (KLR) | Judicial Review | Esheria

Kipsoimo Kitur, Kipketer Murwon & Paul Sawe Kogo v Kwanza Land Disputes Tribunal, Erastus Samoei & 8 others [2015] KEHC 6645 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

MISC. CIVIL APPLICATION NO. 22 OF 1997

(ELD. H. C. MISC. CIVIL APPLICATION NO. 146 OF 1997

1. KIPSOIMO KITUR )

2. KIPKETER MURWON )

3. PAUL SAWE KOGO )::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

AND

KWANZA LAND DISPUTES TRIBUNAL  :::::::::::::::::::: RESPONDENT

AND

ERASTUS SAMOEI & 8 OTHERS ::::::::::::::::: INTERESTED PARTY

R U L I N G

1. The ex-parte applicants brought a notice of motion dated 11/7/1997  seeking an order of certiorari bringing into this court the decision of Kwanza Land Disputes Tribunal which was subsequently adopted as a  judgement of the court on 18/4/1997 for purpose of quashing the same.

2. The ex-parte applicants contend that the decision of the Tribunal was not signed and that they did not participate in the same. They also contend that some of the members who participated in the proceedings were not gazetted as required.

3. The interested parties have opposed the ex-parte applicant's application on the ground that the applicants are the ones who filed proceedings in the Tribunal and that they are only disowning the verdict because it was not favourable to them.

4. I have gone through the ex-parte applicants motion as well as the opposition to the same by the interested parties.  The decision being  complained of was reached pursuant to the provisions of the Land Disputes Tribunal's Act which has since been repealed.  The ex-parte applicants contention that they did not file any claim before the Kwanza Land Disputes Tribunal has no basis.The chairman of the defunct tribunal swore an affidavit and admitted that there was such a claim before the tribunal. When the verdict of the tribunal was brought to court for purposes of adoption the record shows that the ex-parte applicants were present.  They indeed went a head to instruct their advocate who filed these proceedings. There is therefore no ground upon which they can claim that they did not file the proceedings before the Tribunal.

5. Section 3 (8) of the Land Disputes Tribunal Act (Now repealed) provided as follows;-

3(8)”The Tribunal shall give reasons for its decision, which shall contain a summary of the issues and the determination thereof, and which shall be dated and signed by each member of the Tribunal.”

A look at the ruling of the Tribunal shows that it was neither dated nor signed by the members as provided for under the above quoted section. The section is couched in mandatory terms and failure of the members to date and sign it is a fatal mistake which cannot be excused.

6. The ex-parte applicants argue that some members of the Tribunal were not gazetted.  I have looked at the Gazette Notice of 4/2/1994. The names of all the four members appear on the Gazette Notice. The only difference is the names of one of the members who in the proceedings is shown as Jolly J. M. Wekhui whereas in the Gazette notice, his name is shown as John Wekhui.  It was upon the ex-parte applicants to show that the names do not refer to one and the same person.  There is therefore no merit in this argument.

7. The advocate for the interested parties argued that if the ex-parte applicants were aggrieved with the verdict of the tribunal, they should have moved against it in the manner provided and within the time allowed.  The ex-parte applicants opted to pursue the Judicial  review way.  The applicants obtained leave to file for Judicial review within the six months required under order 53 of the Civil  Procedure Rules.  The main motion was filed within the time given by the court.  I therefore do not find any merit in the argument.

8. As the Tribunal Judgement was not dated or signed as required, I find that the same was a nullity ab initio. The same as well as the decision of the court adopting it as a judgement of the court ar hereby removed into this court and accordingly quashed.  The ex- parte applicants shall have costs of this application.

It is so ordered.

Dated, signed and delivered at Kitale on this 19th day of February, 2015.

E. OBAGA

JUDGE

In the presence of ex-parte applicants and interested parties.  Court Clerk – Kassachoon.

E. OBAGA

JUDGE

19/2/2015