Republic v Chairman Land Disputes Tribunal Ex-parte Henry Boyi Kawa, Henry Amalele Wenekeya & Timothy Khisa Alichuma [2013] KEHC 2003 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC. APPLICATION CASE NO. 162 OF 2010

IN THE MATTER OF AN  APPLICATION BY (1)  HENRY BOI KAWA (2)  HENRY AMALELE WENEKEYA FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI

AND

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

IN THE  NAITIRI LAND DISPUTES TRIBUNAL NO. 18/2010 AND KIMILILI PM'S  COURT LAND CASE NO. 18 OF 2010

BETWEEN

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

AND

THE CHAIRMAN

LAND DISPUTES TRIBUNAL …............................................RESPONDENT

EXPARTE

1.   HENRY BOYI      KAWA..........................................................APPLICANT

2.   HENRY AMALELE WENEKEYA  …................................… APPLICANT

VERSUS

TIMOTHY KHISA ALICHUMA …................................. INTERESTED PARTY

JUDGMENT

This is a Judicial review application seeking to quash the decision of  Naitiri Land Disputes Tribunal award which was read and adopted as an order of the court on 21st September 2010.  Leave to apply for orders of Judicial Review was granted on 27th October 2010.  The leave was to  operate as stay.  The judge directed that the notice of motion was to be filed within 21 days.

The notice  motion was filed on 19th November 2010.  The month of October ends on the 31st day.  Therefore excluding  27th day  leaves 28, 29, 30 & 31 (four days) add to 19 days  of November gives you 23 days.  This is beyond the  21 days as directed by the judge who granted leave and the law. Order 53 rule 3 provides; "... the application shall be made within twenty one days by notice of motion to the High Court."The notice of  motion was therefore filed out of time. The ex parte applicants disregarded this mis-step as there is no explanation given why they did not file the application within time.

The interested party in his replying affidavit deponed that  he is wrongly sued. He is the  chairman of the School  Management Committee of Maliki Primary School.  He  presented the  claim before the Tribunal on behalf of the school as an official of the Management team and not in his personal capacity.  He urged the court through their submission  for his name to be struck out from the pleadings. The  exparte applicant in paragraph 3 of his supporting affidavit  depones thus;

“The interested party herein is a total stranger to this  parcel of land and that he is not  entitled to  share in the same.”

The exparte applicant ought to have sued the interested party as  chairman of the school and not in his personal capacity.  In the award, the Tribunal  gave land to the school and not  to the person of the interested party. The  exparte applicant has wrongly sued him in his personal capacity. I agree with the submission that his name should be struck out from the pleadings. I am alive to the provisions of article 159 of the Constitution as regards substance rather than courts relying on technicality. However this is more than a technicality. Part of the award sought to be quashed is worded as below;

1.  Henry Boi Kawa transfers plot  Kamukuywa/782 to Maliki  Primary School.

2. The Land Registrar to investigate plot 252 and revert back the original land that the owner of plot 252 had paid for and given to the School for he  proposed projects"

The ex parte applicants were aware the interested part brought the claim on behalf of the school not on his personal interest as deponed in their affidavit. Therefore in allowing the motion to proceed as drafted would go against the rules of natural justice as regards the interests of Maliki Primary school. The order, if the motion is allowed would result into condemning the School unheard as they were not joined as parties to these proceedings.

In light of the foregoing, this motion must  fail for the reason  of being filed  out of time and  misjoinder of parties.  I will therefore  not  delve into the merits or otherwise of  the motion.  I proceed to strike  it out.  Given the ex parte applicants were the ones sued before the Tribunal I will not condemn them to costs.  Each party will  bear their respective costs.

JUDGMENT DATEDThis 8th day of October 2013

A. OMOLLO

JUDGE.