REPUBLIC v CENTRAL D L D R & 2 Others [2010] KEHC 266 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

HC MISC APPLICATION NO. 55 OF 2007

REPUBLIC………….....................................…………………………………….APPLICANT

VERSUS

CENTRAL D L D R)

SAMMY W. MALESI)…………………................................................................RESPONDENTS

EXPARTE: JOHN M. TABANA)

RULING

1. The Notice of Motion dated 8th October, 2009 is taken out by the interested party. The applicant seeks for orders that the order made on 27th November, 2007 in Kitale HC MISC Civil Application No. 46 of 2007 granting leave to the applicant to apply for an order of certiorari to  operate as a stay of enforcement of the decision of the Central Land Disputes Tribunal be lifted and the  application be dismissed with costs.

2. Due to this unreasonable delay, the interested party has been prejudiced he has been deprived of the fruits of the judgment which was adopted by the subordinate court. The interested party was a proceeding with execution and a notice to show cause had been taken out against the applicant when he obtained the exparteorder of stay. These grounds in support of the application are elaborated further by the matters deposed to in the supporting affidavit sworn by Sammy Wycliffe Malesi on 8th October, 2009. The interested party is the decree holder in Kitale CMCC No. 87 of 2007 where the applicant was awarded 3 acres for failure to pay a sum of Ksh. 1,140,000/=.

3. Execution proceeded, that is when the exparte applicant sought to quash the judgment of the court but to date he has failed to prosecute the application or even to serve the state law office on behalf of the Attorney General. The exparte applicant was also ordered to pay costs of Ksh. 2,500 before fixing a hearing date which he has failed to pay. Mr Kiarie learned counsel for the interested party urged the court to be persuaded by the decision in the case of RepublicV   City Council of Nairobi {2008} eKLRwhich is in all fours with this matter and strike off the order of stay due to the applicant’s conduct.

4. This application was opposed; counsel for the exparte applicant relied on the replying affidavit of John Tabalya Mukite sworn on 26th January, 2010. According to Mr. Wasike, learned counsel for the exparte applicant, there were legal obstacles that contributed to the delay in fixing this matter for hearing. Firstly there was gazette Notice No. 300 of February, 2007, in which the Chief Justice directed all matters involving Judicial review, filed under order 53 of the Civil Procedure Rules be filed at the Central Registry of the High Court in Nairobi.

5. This contributed to the delay although the gazette Notice was subsequently lifted in February, 2009. Secondly, the exparteapplicant was involved in a serious accident for which he was hospitalized and was undergoing treatment, thus the delay was not intentional. Lastly, there is a time when the matter appeared before Ombija J and the Judge directed that parties should negotiate an out of court settlement and record a consent, unfortunately, no consent has been forthcoming.

6. It is evident from the record, and it is also admitted by counsel for the exparte applicant that there was delay in taking steps to prosecute this matter. The explanation given that the delay was occasioned by certain factors such as gazette Notice No. 300 of January, 2007 which was subsequently lifted almost two years later in February, 2009. This application invokes the exercise of the court’s discretion which is exercised in the interest of sabstantive justice.  See the case of Shah V Mbogo & another {1967} E.A Page. 116.

7. Taking the totality of the matters raised in this application, it is in the interest of justice that the exparte applicant’s case be sustained. It is common ground the applicant has been lethargic in prosecuting this matter for that reason I will give conditions that he should pay the cost of this application to the interested party assessed at Ksh. 10,000/= within two weeks. The exparte applicant should also fix the matter for hearing within two months failure to comply with any of the above conditions the order of stay issued on 27th November, 2007 will stand discharged.

Ruling read and signed this 12th day of November, 2010

MARTHA KOOME

JUDGE