Republic v Funyal Land Dispute & 3 Others [2013] KEHC 5972 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

JUDICIAL REVIEW NO. 3 OF 2009.

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

VERSUS

FUNYAL LAND DISPUTE.          )

PM’S COURT AT BUSIA            )………......………RESPONDENTS.

SYLVESTER OKUMU OKELLO. )

EDWARD AWORI OSALO           ) ……..........…INTERESTED PARTY

R U L I N G.

The Exparte Applicant,  namely  SYLVESTER  OKUMU OKELLO through  M/S.  Maloba & co. Advocates filed the notice of motion dated 6th November, 2009 for an order of certiorari to call into this court and quash the proceedings and order in Busia PMC. Land case NO.54 of 2008 adopting the award of Funyula Land Disputes Tribunal on 2nd September, 2008 plus costs.

The interested party, namely Edward Awori  Osalo, through  M/S. Wanyama  & co. Advocates filed a replying affidavit dated 15th December, 2010 opposing the application.

By consent dated 29th February, 2012, counsel agreed to file written submissions. The  applicant’s counsel  filed their  written submissions dated 13th March, 2012 on the same date while  interested party’s  counsel filed theirs dated 29th May, 2012 on 12th June, 2012.

Counsel then appeared before the court on 13th May, 2013 and disclosed that the interested party had conceded to the application and all that remained was for the court to make a ruling on costs.

I have  carefully considered the written submissions by both counsel and the pleadings  in the file and it is apparent there has been  several cases some  decided and at least one pending in Nairobi between the parties herein  over the land subject matter of this case. The  interested  party was aware of those other cases when he initiated  the claim before  the Funyula Land Disputes Tribunal finally culminating  with this case.  It was the interested party’s action of going to lodge his claim in the wrong forum that made the Exparte applicant file the  current application  to which the interested party has conceded though late in the day.  The Exparte party Applicant incurred expenses and the same should be paid by the interested party.

The Exparte  Applicant’s application  dated  6th  November, 2009 is allowed  and an order of certiorari issued calling  the Funyula Land Disputes Tribunal  order in case No. 15 of 2008 relating to Samia/Bugongo/245 of 7th August, 2008 and adopted by Busia PMC. Land  case No. 54 of 2008 on  2nd September, 2008 in to this court and quashing the same. The Exparte  applicant  costs will be met by the interested party.

S. M. KIBUNJA,

JUDGE.

13TH JUNE, 2013.