REPUBLIC V CHIEF LAND REGISTRAR & 5 OTHERS EX PARTE HUMPHREY KIGOMBE & 2 OTHERS [2013] KEHC 3661 (KLR)

REPUBLIC OF KENYA

High Court at Mombasa

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IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICAL REVIEW AND FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION

IN THE MATTER OF:             THE CONSTITUTION OF KENYA

IN THE MATTER OF:             THE LAND ADJUDICATION ACTCHAPTER 284 OF THE LAWS OF KENYA

IN THE MATTER OF:            THE REGISTERED LAND ACT, CHAPTER200 OF THE LAWS OF KENYA

IN THE MATTER OF:            THE REPUBLIC

VERSUS

THE CHIEF LAND REGISTRAR……………………...................…....…1ST RESPONDENT

THE DIRECTOR OF LAND ADJUDICTION &SETTLEMENT ….....….2ND RESPONDENT

THE DISTRICT LAND REGISTRAR,TAITA/TAVETA DISTRICT…....…3RD RESPONDENT

THE HONOURABLE MINISTERFOR LANDS AND SETTLEMENT ….4TH RESPONDENT

THE DISTRICT COMMISSIONERTAITA/TAVEA ……………….……..5TH RESPONDENT

THE DISTRICT LAND ADJUDICTIONAND SETTLEMENT OFFICER, TAITA/TAVETA

OFFICER, TAITA/TAVETA ……………………................................……..6TH RESPONDENT

EX PARTE

HUMPHREY KIGOMBE ………………………………........................……1ST APPLICANT

ROPHUS MWAMBURI ……………………………........................………2ND APPLICANT

WISDOM MWAMBURI …………………………..........................………..3RD APPLICANT

INTERESTED PARTIES

1. JACOB MWALUKUKU

2. HENRY MWANYUMBA

O R D E R

1)As parties may be aware I was redeployed to Busia High Court with effect from 1st March 2013. That re-deployment affected my work programme and for this reason I was unable to deliver judgment herein on 21st March 2013 as I had planned. I apologize to all involved. The parties will be further disappointed to learn that I am yet to prepare a judgment . This is the reason.

2)Both at the leave stage and on filing the substantive motion, the Applicants cited two persons as interested parties; 1) JACOB MWALUKUKU 2) HENRY MWANYUMBA. These are the people who are said to have unlawfully benefited from the decision sought to be impeached by these proceedings. Order LIII Rule 3(2) of the previous version of the Civil Procedure Rules (reproduced  as order 53 Rule (3) of CPR, 2010) requires a substantive motion to be served on all persons directly affected. Jacob Mwalukuku and Henry Munyumba are such persons.

3)In the course of preparing the judgment I came across the Affidavit of service sworn by Rophus Mwamburi on 1st November 2004 in respect to service of the Notice of Motion on the interested parties. This is what he said in respect of the 1st Interested party.

“4. THAT I also served the document on the two sons of the deceased 1st interested party who are Bernard Babu Nyambu and Joseph Mbanda Nyambu and who are the legal representatives of the deceased. The said sons signed the back of the documents and dated them 3rd October 2004”.

Before proceeding any further this Court requires to satisfy itself that

i)Jacob Mwalukuku is indeed dead

ii)and if so that Benard Babu Nyumbu and

Joseph Mbanda Nyambu are personal

Representatives to his estate.

These is important because the two have never participated in theseproceedings notwithstanding evidence that they have been served on     several occasions. The Court must satisfy itself that, as required by  law, all persons directly affected have been served with the substantive motion.

4)I invite parties to move this court for a mention for purpose of addressing this concern.

F. TUIYOTT

J U D G E

DATED AND DELIVERED THIS 10TH DAY OF MAY, 2013

IN THE PRESENCE OF:

J U D G E

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