Republic v Chairman Land Disputes Tribunal Ikutha Division Ex-parte Kitonyi Ndei [2015] KEHC 4673 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

MISC. CIVIL APPLICATION NO.  121 OF 2006

IN THE MATTER OF THE   APPLICATION FOR JUDICIAL REVIEW BY WAY OF AN ORDER OF CERTIORARI

AND

IN THE MATTER OF THE DECISION OF THE LAND DISPUTES TRIBUNAL IKUTHA DIVISION

AND

IN THE MATTER OF THE LAND DISPUTES TRIBUNAL ACT

AND

IN THE MATTER OF PRINCIPAL MAGISTRATE’S COURT AT KITUI CIVIL LAND NO. 25 OF 2006

BETWEEN

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

AND

THE CHAIRMAN LAND DISPUTES TRIBUNAL

IKUTHA DIVISION… ……………………………………………………………...RESPONDENT

AND

KAVITA WAMBUA ………………………………………………………INTERESTED PARTY

AND

KITONYI NDEI ……………………………………………………….…EX-PARTE APPLICANT

R U L I N G

1.            The Exparte applicant sought leave pursuant to the provisions of Order LIII rule 1 of the Civil Procedure Rules to apply or judicial review.  He also sought to have the leave if granted to operate as stay of execution of the order granted by the Senior Resident Magistrate on the 9th May, 2006.

2.            The prayer sought in respect of leave was granted on the8th May, 2008. An order of stay was also granted as prayed.  Consequently the exparte applicant filed a substantiveNotice of Motion seeking an order of certiorari to remove to the High Court for purposes of being quashed, the award and/or decision of the Land Disputes Tribunal, Ikutha Division case No. LC4 of 2003 and an order of the court in Kitui PMCC 25 of 2006adopting the award as the judgment of the court.

3.            The application was premised on the grounds that the proceedings before the tribunal were null and void and not properly instituted.

4.            The interested party filed a replying affidavit whereby she deponed that the application is frivolous and vexatious as the tribunal had the jurisdiction to deal with issues raised before it.

5.            A preliminary objection was raised by the interested party on the grounds that the proceedings were filed out of time, hence an abuse of the court process.

6.            According to directions taken on the 17th July 2014, the preliminary objection and Notice of Motion were to be canvassed simultaneously.  Only the interested party filed submissions.  It was submitted that the judgment sought to be quashed was delivered on the 14th March 2003 and the applicant sought leave in 2006, more than 3 years had passed before the court was moved to invoke its special jurisdiction by way of judicial review.  This should have been done within 6 months of the date of proceedings.

7.            Further, he submitted that it was trite that a party whose judgment seeks to be quashed has to be made a party.  The Principal Magistrate who adopted the award has not been enjoined and this affects the substance of the motion.  The tribunal is established pursuant to Section 4 of the Land Dispute Tribunal and has jurisdiction pursuant to Section 3(1) (a) of the Act which deals with respective boundaries of parties since the applicant was selling portions of land that did not belong to him.

8.            It is alleged that leave herein was obtained 3 years after the decision the exparte applicant seeks to be quashed.  In the statement of facts it is stated that the order by the court was made on the 9th May, 2006. There is a stamp impression on the copy of judgment of the Land Disputes Tribunal but the date is not clear.  The award was, however, adopted by the court on the 9th May, 2006.  It is trite that leave to apply for the prerogative order of certiorari ought not be granted after six (6) months (see Aga Khan Education Service Kenya V. Republicexparte Ali Seif and 3 Others (2004 eKLR).

9.            According to Section 7 of the Land Disputes Tribunal Act, (Now repealed) the Chairman of the Tribunal is obligated to cause the decision made to be filed in the Magistrate’s Court whereafter the court enters judgement in accordance with the decision of the tribunal.  Judgment of the court having been on the 9th May 2006, time started running on the said date.

10.            The application seeking leave was filed on the 22nd August, 2006which was approximately 2 months and 2 weeks later.  It is the court that did not exercise its duty of hearing the application soon thereafter.   In the premises the preliminary objection raised lacks merit.  Accordingly it is dismissed.

11.            The 2nd limb of the application is for quashing an order made by the Senior Resident Magistrate adopting the award as the judgment of the court.  The Senior Resident Magistrate was not enjoined as a party to the suit.  There is no way an order can be made against a party who is not a party to the proceedings.  In the case of Wamwea Vs Catholic Diocese of Murang’a Registered Trustees (2003) KLR 389 the court stated thus:

“The decision of the tribunal or Appeals Committee adopted by the Magistrate’s Court in accordance with the provisions of Land Disputes Tribunal Act becomes a decision of the Magistrate’s Court and ceases to exist as a separate entity challengeable alone.”

12.            From the foregoing, in order for the decision of the Senior Resident Magistrate to be quashed the court should have been enjoined as party.  Failure to enjoin it was detrimental to the exparte applicant’s case.

13.            In the result the application fails.  Accordingly it is dismissed with costs to the 2nd Respondent.

DATED, SIGNEDand DELIVERED at MACHAKOS this 28THday of APRIL, 2015.

L.N. MUTENDE

JUDGE