Republic v Chairman Amagoro Land Disputes. Tribunal & Jacinta Papa Ex-Parte Paul Mafwabi Wanyama [2015] KEHC 4410 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

JUDICIAL REVIEW NO. 10. OF 2010.

IN THE MATTER OF AN APPLICATION BY PAUL MAFWABI WANYAMA FOR LEAVE TO APPLY FOR

JUDICIAL REVIEW ORDERS OF CERTIORARI

AND

IN THE MATTER OF BUSIA PRINCIPAL MAGISTRATE’S COURT LAND DISPUTES TRIBUNAL CASE. NO. 89 OF 2008.

IN THE MATTER  OF DECITION OF AMAGORO LAND DISPUTES TRIBUNAL CASE NO. 15 OF 2007

NORTH TESO LOCATION

BETWEEN

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

VERSUS

THE CHAIRMAN  AMAGORO LAND DISPUTES.TRIBUNAL…………..RESPONDENT.

AND

JACINTA PAPA ……………………………………………............INTERESTED PARTY

EX-PARTE

IN THE  MATTER  OF PAUL MAFWABI WANYAMA……………............…APPLICANT.

R U L I N G.

JACINTA PAPA, the Interested Party, through  M/S. Ipapu P. Jackah  & company advocates  gave notice, dated 21st January, 2015 to raise preliminary objection to the application  dated 20th February, 2009 for being  an abuse  of the courts process  for reasons  that it  was filed  out of time.

The notice  was served and heard on 6th May, 2015  in the absence  of the Exparte  Applicant’s  counsel.

The court  has carefully  considered  the submissions by the Interested Party’s counsel  and the Court of Appeal, Kisumu decision of 18th December, 2014  in Civil Appeal  number  41 of 2013 in Republic  -vs-  The Chairman, Amagoro  Land Disputes  Tribunal  & Another,Exparte Applicant Paul  Mafwabi  Wanyama.  The court  has also considered  the proceedings in this file and  the pleadings filed herein  and find as follows;

That the  leave to  file the substantive application  was granted  on 30th January, 2009.

The Exparte  Applicant was  directed to file  the substantive   application  in 21 days.

The substantive  application  dated 20th February, 2009 was filed on 23rd  February, 2009.  This was three (3) days outside  the 21 days  ordered during  the leave application orders.

That as held in the Court of Appeal  decision cited  above, this court has no jurisdiction  to extend  time in judicial review proceedings and the Notice of Motion  dated 20th February, 2009 and filed on 23rd February, 2009 is a nullity and of no consequence for  being filed out of time.

The preliminary  objection  by the Interested Party is therefore  upheld and the notice of motion  dated 20th February, 2009  and filed on 23rd February, 2009, is hereby  struck out and dismissed  with  costs to the Interested Party.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 11TH DAY OF JUNE, 2015.

IN THE PRESENCE OF;

APPLICANT……………ABSENT………………………………………………….

RESPONDENT…………ABSENT…………………………………………………

COUNSEL……MR. IPAPU FOR INTERESTED PARTY.………………………

JUDGE.