Morris Kirema M'ituru v Tigania East District Land Adjudication and Settlement Officer, Attorney General & James M'amanja M'rukunga [2016] KEELC 755 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

JUDICIAL REVIEW NO 5 OF 2014

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR A JUDICILA REVIEW ORDER OF CERTIORARI

AND

IN THE MATTER OF THE PROCEEDINGS, FINDINGS AND DECISION MADE ON 05. 12. 2013 IN OBJECTION NO 636 OVER LAND PARCEL NUMBER 6348 SITUATED IN AKAIGA ADJUDICATION SECTION.

BETWEEN

MORRIS KIREMA M'ITURU ….............................................EXPARTE APPLICANT

VERSUS

TIGANIA EAST DISTRICT LAND ADJUDICATION AND

SETTLEMENT OFFICER..............................................................1ST RESPONDENT

ATTORNEY GENERAL ….............................................................2ND RESPONDENT

AND

JAMES M'AMANJA M'RUKUNGA..............................................INTERESTED PARTY

R U L I N G

1. This application is dated 7th July, 2014 and seeks orders:-

a. That this Honourable Court be pleased to certify this application urgent and that the same be heard expeditiously.

b. That this Honourable Court be pleased to strike out this Judicial Review with costs to the Interested  Party/applicant.

c. That the stay orders granted by Court on 12 March, 2014 be discharged accordingly.

d. Cost of this case/application be awarded to the Interested Party.

2. It is supported by the affidavit of Leonard Ondari, the Advocate for the Interested Party and has the following  grounds:-

a. No Notice of Motion was filed and served within the mandatory 21 days.

b. The leave obtained is thus a non-starter.

c. The conduct of the Exparte application amounts to gross abuse of the Court process.

3. The Supporting Affidavit is dated 7th, July, 2014 and states as follows:-

1. THAT, I am a male adult of sound mind capable of swearing this affidavit.

2. THAT, I have the conduct of this case on behalf of the Interested Party.

3. THAT, immediately the Interested Party was served with the order dated 13th  March, 2014, he instructed us to act for him.

4. THAT, on 3rd April, 2014 we filed and served our Notice of appointment.

5. THAT, on 25th June, 2014, I visited the registry to peruse the file herein and was surprised to find that no notice of motion was filed within the statutory period as required by law.

6. THAT, the  exparte applicant is therefore taking this Court for a ride or has abused its process.

7. THAT, the order of stay is therefore irregular in absence of the Notice of Motion.

8. THAT, the whole application has therefore no basis its irredeemable as no amount of amendment can save it.

9. THAT, It is only fair that the case be struck out and Orders  discharged.

4. When the matter came up for directions, it was clear that that the  exparte applicant did not file the apposite notice of Motion within the Stipulated time. In the Circumstances, the application is allowed in terms of prayers (b) (c) and (d).

It is so ordered .

DELIVERED IN OPEN COURT AT MERU THIS 24TH DAY OF MAY, 2016 IN THE PRESENCE OF:-

CC: Lilian /Daniel

Mutuma for the exparte applicant

Ondari for the Interested Party.

P.M.NJOROGE

JUDGE