Republic v Chairman Kanduyi LDT & Pius Nabangi Sikwembe [2013] KEHC 5894 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISCELLENEOUS APPLICATION CASE NO. 57 OF 2009

IN THE MATTER OF THE LAW REFORM ACT CAP 26  LAWS OF KENYA

AND

INTHE MATTER OF AN APPLICAITON BY MARTIN NABANGI MULONGO FOR

ORDERS OF JUDICIAL REVIEW

AND

IN THE MATTER OF THE LAND DISPUTES TRIBUNAL ACT NO. 18 OF 1990

AND

REPUBLIC

VERSUS

THE CHAIRMAN KANDUYI  LDT  ......….............RESPONDENT

VERSUS

PIUS NABANGI SIKWEMBE.…....………INTERESTED PARTY

RULING

This is an application for review of the court's ruling made on 9th October 2012. The application is brought under  Sec. 80 of the Civil Procedure Act and Order 45 Rule 1 & 2 of the Civil Procedure Rules.

The application  is supported  with the grounds on the face of the record inter alia; there is an error apparent  on the record and there is sufficient reason obtaining for this court to  exercise its discretion.  The application is further supported by the affidavit sworn  by  Martin Nabangi Mulongo.

The application  is opposed.  The interested party  has sworn an affidavit filed in court  on 15th May 2013.    He avers   the application is untenable in law and it  should collapse. He also stated the application lacks   merit and only dictates the delay to  end.   He annexed  copy of the judgment/ruling of the  court.

I have  read the ruling/judgment sought to be reviewed.  The trial judge  dismissed   the substantive motion for the reason  that it was based on  leave  that was granted  out of time  hence both leave and the substantive motion was anullity.  The award  sought to be  quashed was dated   23. 1.2001 however it was filed in court from  the proceedings in 2008.

It got adopted on 9th January 2009. The application for leave was filed on 5th March 2009.

This court  therefore  seeks to answer the  question  if the grounds for review as set out under section 80 and order 45 have been met to allow me question when does time begin to run. This then will determine  whether  the application for leave was filed in time or  outside the six months.

The award was dated 23rd January 2001, it does not indicate  whether it  was  read out to the parties before it was forwarded to the Magistrates court for adoption.  In the last line of the ruling,  these were the words of the Tribunal “The objector  meets the costs of the case. The aggrieved  party to appeal after   30 days from  the date of adoption.”

I have read through decisions of  over   the same subject when   time  runs  whether from the date  of decision of the Tribunal or from the date of adoptionof the award.

Justice  Isaac Lenaola in R. Vs. Chairman Meru Land Disputes Tribunal vs. 2 others exparte  Stephen Mukuru [2006]eKLRheld that time starts running from the date of decision of the Tribunal  and not when it was adopted as an order of the court.

In case of Joseph Amuyeka & another vs. Philip Mwachi Otinga [2006] eKLR,Justice G.B.M. Kariuki stated  that the  law  expects the date of the award or the decision  to be the date it  is pronounced.  He further  said  that  where the date of award is not  pronounced at the conclusion of the proceedings, the Tribunal must then notify the parties in writing of the place and  date  where the award/decision will be pronounced.  He held that the date of decision was when it was  read to the parties.

The ruling I am asked to review  was reached on the basis of the same  school of thought as did  Justice  I. Lenaola on the cited case. Although  I am of the view that time starts running from  date of adoption of the award in   court which in my view is the date of its pronouncement to the parties given the matter was reached by a judge of concurrent jurisdiction, setting  it aside amounts to asking  me to sit on an appeal and declare   its school of thought as wrong. In the case of David Ombee Ombee vs Isaac Oluoch Opi, Ksm HCC 115 of 2000(unreported) see Odungas Digest on Civil case law & Procedure, Justice Tanui ( as he then was) where a party attacks the court's misconstruing the law is not a ground for review but a ground for appeal.

In the instant case, the question is not error apparent on record but determination when time begins to run. Neither would it fall under sufficient reason for the court to review. The proper court to  give  guidance on this matter would be the  court of appeal.  The applicant ought to pursue the matter for interpretation on when time started running from the higher court not by way of review.  I would have reached a different  decision if the matter had not been previously dealt with being cognisant of the holding in R vs Judicial Commission of inquiry into Goldenberg Exparte Mwalulu & 8 others (2004) eKLR.

For these reasons stated above, I dismiss the application with an order  that each party to meet  its own costs of this application.

RULING DATED, SIGNED, READ AND DELIVERED in open court this 18th   day of June  2013.

OMOLLO

JUDGE.