Republic (ex-parte) through Alex Ochieng Apunda v Kisumu Inter-Locational Land Dispute Appeals Committee (Nyamthoyo), District Commissioner Kisumu West District, Attorney General, Norbetus Nyambok Odaa & Benard Obuya Oyoko [2016] KEELC 155 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC JUDICIAL REVIEW APPL.NO.22 OF 2013

IN THE MATTER OF AN APPLICATION BY ALEX OCHIENG APPLICANT

UNDER THE LAW REFORM ACT AND UNDER ORDER 53 OF THE CIVIL; PROCEDURE RULES

AND

IN THE MATTER OF THE LAND REGISTERED ACT, 2012 AND THE LAND ACT, 2012.

THE REPUBLIC (EX-PARTE)

THROUGH ALEX OCHIENG APUNDA………………………….EXPARTE APPLICANT

VERSUS

KISUMU INTER-LOCATIONAL

LAND DISPUTE APPEALS COMMITTEE (NYAMTHOYO)…………1ST RESPONDENT

THE DISTRICT COMMISSIONER KISUMU WEST DISTRICT………..2ND RESPONDENT

THE ATTORNEY GENERAL………………………………………………3RD RESPONDENT

NORBETUS NYAMBOK ODAA………………………………………..1ST T INTERESTED PARTY

BENARD OBUYA OYOKO………………………………………………..2ND INTERESTED PARTY

JUDGMENT

1. Alex Ochieng Apunda, the Exparte Applicant , through the notice of motion dated 16th December 2013, seeks for orders of certiorari and prohibition in respect of the award of Kisumu Inter-locational Land Disputes Appeal Committee (Nyamthoi) dated 16th April  2013 in respect of the unsurveyed land situated at Nyamthoyi, East   Kolwa location, Kisumu County.  The application is brought against Kisumu  Inter-locational Land Disputes Appeals Committee (Nyamthoi), District Commissioner Kisumu West District, The Attorney General, refered to as 1st to 3rd Respondent plus Norbetus Nyambok OdaaandBenard  Obuya Oyoko, hereinafter refered to as the 1st and 2nd Interested Party.  The application is based on the statement of facts and verifying affidavit.

2. The Deputy Chief litigation counsel entered appearance for the 3rd Respondent through the memo dated 3rd April 2014.

3. The Interested Parties opposed the notice of motion through their replying affidavit.

4. The proceedings of 2nd March 2015 shows that M/S Esedi for the Respondents conceded to the application.  Then on the 21st September 2015, Mr Otieno for Oyuko for the Interested Parties and Mr. Omollo for the Exparte Applicant agreed to file written submission on the notice of motion.  The Exparte

Applicant  filed their submission dated 4th February 2016 on 8th February 2016 while Interested Parties filed theirs dated 26th January 2016 on 13th September 2016.

5. The issues for determination by the court are as follows;

a) Whether the decisions of the 1st Respondent are subject to judicial review orders.

b) Whether the decision subject matter of the notice was a decision on appeal or review.

c) Whether the decision subject matter of this proceedings was ultra vires their jurisdiction.

d) Whether the 1st Respondent accorded all the parties before it a fair hearing.

e) What orders to issue.

6. The court has considered the grounds on the notice of motion, statement of

facts, affidavit evidence, the rival written submissions and come to the following determinations;

a) That the 1st Respondent appear to be a creation of the Local Administration and is clothed with powers to listen and decide on land use and other related disputes between the residents of the area.  That it’s decision appear to be implementable through the local administration and are therefore amenable to judicial review proceedings.

b) That in view of the finding in (a) above, the 1st Respondent  has an obligation to ensure all  the parties before it are granted a fair hearing to present their cases before a decision is made.  That the Exparte Applicant’s main  complaint is that the same members who heard the initial dispute and made a ruling in his favour, later sat as an appeals committee on their own decision and overturned it without giving him a hearing.  He further indicated that the chairman, Mr. Gabriel  Atieno, had died in December 2012 yet he is indicated to have appended his signature in the appeals decision of 16th April 2013.  That  the Interested Parties,  position  is that the record of the  initial proceedings and award was interfered with to award the Exparte Applicant more land than the Committee had actually awarded him. That when this was realized and brought to the attention of the Committee, they sat again and reviewed their decision and that all parties including, the Exparte Applicant, were involved.  That the scenario described by both the Exparte Applicant and the Interested parties leads the court to find that the records of  the 1st Respondent on the initial determination of 18th June 2010 and the review decision of 16th April 2013 are both questionable and unreliable.

c) That a copy of the award dated 16th April 2013 is clearly, headed“Decision/ruling Report (Reviewed)” and at clause 2 the Committee observed as follows:

‘’Secondly, the Committee erred in law and fact by misdirecting itself to deliver a defective report under the pretext of “THE MAJORITY RULE WINS” (VOTING) after part of the original Ruling report was deleted and replaced with false information……………… “ (emphasize mine).  That this renders credence to the Interested Parties contention that the award of 18th June 2010 had been interfered with and therefore did not reflect the decision of the 1st Respondent and hence the appeal (review) proceedings.

d) That should the court allow the quashing of the decision of 16th   April 2013, then the parties will have to revert back to the earlier award of 18th June 2010, which the Committee observed did not reflect their correct decision as some portions of it had been deleted and others added. That the court has not been presented with the copy of the award that has been agreed to have been the genuine award.  That from the foregoing the court is of the view that the parties dispute need to be heard a fresh by a committee consisting of different members from those that heard the dispute and appeal and  or review proceedings earlier leading to the awards of 18th June 2010 and 16th April 2013.

7) That in view of the foregoing the court issues an order of certiorari and calls to this court the awards of 18th June 2010 and review (appeal) decision of 16th April 2013 for quashing.  That the parties are at liberty to present their dispute to a differently constituted committee and or forum for hearing in accordance with the law.  That each party do bear their own costs.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 30TH DAY OF NOVEMBER 2016

In presence of;

Exparte Applicant           Present

Respondents                 Absent

Interested parties          Absent

Counsel                          Mr Odhiambo for Omollo for Exparte Applicant

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

30/11/2016

30/11/2016

S.M. Kibunja Judge

Oyugi Court assistant

Exparte applicant present

Mr Odhiambo for Ken Omollo for Exparte Applicant

Court:  Judgment delivered and dated in open court in presence of Exparte Applicant and Mr Odhiambo for Ken Omollo for Exparte Applicant.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

30/11/2016