Republic v Chief Magistrates Court Busia, Busia Municipality Land Disputes Tribunal, Attorney General & Joseph Owoko Otanga Exparte John Ochola Owoko & Joseph Ogola Owoko I [2013] KEHC 5906 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

MISC. APP. 160 OF 2012.

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

AND

IN THE MATTER OF AN INTENDED APPLICATION BY THE NAMED EXPARTE

APPLICANTS FOR EXTENSION OF TIME TO SEEK LEAVE TO APPLY FOR

JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF THE REGISTERED LAND ACT,CAP 300 LAWS OF KENYA.

THE LAW REFORM ACT, CAP 26  LAWS OF KENYA AND THE CIVIL

PROCEDURE RULES 2010.

BETWEEN

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

VERSUS

THE CHIEF MAGISTRATES COURT, BUSIA……………….1ST RESPONDENT

THE BUSIA MUNICIPALITY

LAND DISPUTES TRIBUNAL…………………………….....2ND RESPONDENT

THE HON ATTORNEY GENERAL…………………………...3RD RESPONDENT

EXPARTE JOHN OCHOLA OWOKO

JOSEPH OGOLA OWOKO

AND

JOSEPH OWOKO OTANGA  …………………………INTERESTED PARTY.

R U L I N G.

JOHN OCHOLAOWOKO andJOSEPH OGOLA OWOKOhereinafter referred to as 1st and 2nd Applicants, through GachecheWaMiano Advocate filed this Notice of Motion dated 10th October, 2012 and brought under Order  50 Rule 6, Order  51 Rule 1, Order 53 Rule 2  of Civil Procedure Rules  and sections 8 and 9 of Law Reform Act and section 3A of Civil Procedure Act for the following orders:

‘1.  THAT this  Honourable court be pleased to grant the Exparte Applicants herein  extension of time to seek leave to  apply for an Order of CERTIORARI  to bring into this Municipality Land Disputes Tribunal  the 2nd Respondent herein through Busia  Municipality Land Tribunal Case No.11 of 2011, and subsequently adopted  as judgment of the court in C.M Land  Case No.74 of 2011 on the 3rd August 2011, purporting to deprive the Exparte Applicant the parcels of land known as L.R. NO.BUKHAYO/BUGENGI 3196 AND  3197 for the purpose of being quashed.

2.  THAT this Honourable court be pleased to grant the Exparte Applicants  herein extension of time to seek leave  to apply for an order  of PROHIBITION directed at the Respondents herein prohibiting them, whether by themselves, their  servants, agents and or employees from alienating, transferring, consenting to, dealing with or otherwise adversely interfering with the Exparte Applicants inalienable, absolute and indefeasible property rights in  respect of all those parcels of land known as L.R. NO.BUKHAYO/BUGENGI 3196 AND 3197 until further  orders of this honourable court, and the interested parties herein to ensure compliance thereof.

3.   THAT the Application for leave to apply for Judicial Review  be deemed to have been duly filed within time.

4.   THAT  grant of such leave do operate as a stay of the judgment dated 3rd  of August, 2011 or any intended transaction, transfer, alienation, consents, dealings  or  any adverse interference with the Exparte Applicants  inalienable, absolute and indefeasible property rights inrespect of all those parcels of land  known as L.R. NO. BUKHAYO/BUGENGI/3196 AND 3197 pending the hearing and determination of the matter herein or until further orders of this honourable court.

5.   THAT costs of this Application be provided for.’’

That  the Exparte  Applicants  instructed their counsel to apply for leave to apply for Judicial Review within time but the said counsel had the Application registered, assessed but never filed.

That  the decision of the Tribunal was arrived at without  affording the Exparte Applicants herein an opportunity to be heard contrary to the sacred tenets of the rules of Natural Justice.

That  the Tribunal  in entertaining the said case, acted  ultra-vires the Registered land Act Cap 300,  Laws  of Kenya and thus the decision reached  thereof is null  and void and of no legal consequences whatsoever.

That theTribunal had no jurisdiction to entertain the said case  as it did, on the  basis of the relevant law and in view of the express provisions of the Land Disputes Tribunal Act No. 18 of 1990 (now repealed).

That the said decision of the Respondents  herein  are highly suspect, flawed and fail the test of due diligence, natural justice, and  the reasonable test as the law demands.

That the application is misconceived.

That no application for leave was ever filed within the  mandatory 6 months period and the period cannot be extended.

That the court has no jurisdiction to entertain the application.

That the  application is an abuse  of the court process intended  to prejudice the intereste4d party and delay the finalization  of Busia CM Land  Case No. 74 of 2011.

That the matters raised in support  of the application are in

Both Mr. Gacheche and Fwayaadvocates  appeared before the court during the hearing  of the application and made their submissions restating the contents of the papers  filed in respect of their clients.

That Order 50 Rule 6 of the Civil Procedure Rules deals with the power of the court to enlarge time for doing any act or taking any proceedings under rules.

Sections 8 of the Law Reform Act do not seem to have any relevance to this application while section 9 of the same Act makes provisions for rules of the court.  Sub section 3 of the said section requires that applications for leave to apply an order of certiorari be filed not later than 6 months after the order complained of was made.The sub section is in the same wording as Order 53 Rule 2 of the Civil Procedure Rules.

MOTOKAA NTHAUTHO – APPLICANT

JOSEPH NJERU & 3 OTHERS  RESPONDENTS.

JAMES GITHINJI KIARA –VS- WILLIAM WACHIRA MWANIKI (2005) eKLR,where the court referred to Order L111 of CPR and held as follows:’’ This rule is almost identical with section 9 (3) of the Law Reform Act (Cap 26) which provides similar provision.  It is apparent that the power of the court to extend time to apply for orders of certiorari after 6 months from the time the action complained of, has been taken away by this provisions which are mandatory provision;the court has therefore no powers to extend time if the application for leave is not made within the 6 months provided’’.

‘’ Often times deserving litigants are shut out because of the operations of Order L111 Rule 2

Nyeri HCC. Misc. App. No. 112 of 2008

-vs-

The provisions of Order L111 Rule 2 of the then Civil Procedure Rules is in the same terms with Order 53 Rule 2 of the Civil Procedure Rules 2010 and agree with the position taken by the Honourable  Judges in the cases cited above.The position of the law is as pronounced by the court of appeal in the case of Wilson Osolo referred to above and this court has no jurisdiction to extend the time set by the statute (Law Reform Act) of 6 months within which to file for leave.  It matters not that the applicant may have very good grounds explaining the challenges that made him or her not to move the court within the said period.

That the requirement of seeking leave to file for substantive application under order 53 rule 2 of the Civil Procedure Rules is on applicable in respect of orders of certiorari.  It does not include applications for orders of prohibition. The rule provides as follows:

That prayer 3 of the application is misplaced in that the court cannot be expected to take the application for leave to apply for judicial review, which is annexed to the application for extension of time to file for leave for the substantive application, to deemed as duly filed at this stage.  This especially so when the court has found as it has done in this case that it has no jurisdiction to extend time to file for application for  leave in view of the mandatory provisions of section 9 (3) of Law Reform Act.

From the foregoing, the Exparte Applicant’s application dated 10th October, 2012 is without merit for reasons shown above and is hereby dismissed with costs.

JUDGE.

19TH JUNE, 2013.