Republic v Funyula Land Dispute Tribunal Busia Principal Magistrate & Francis Tobias Akello [2014] KEHC 1935 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

JUDICIAL REVIEW  NO. 24 OF 2009.

IN THE MATTER  OF AN APPLICATION BY GABRIEL  ONYANCHI SUNDIA FOR  ORDERS  OF LEAVE OF THIS HONOURABLE COURT TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITIONS

AND

IN THE MATTER OF THE DECISION AND FINDINGS OF FUNYULA LAND DISPUTES TRIBUNAL CASE NO. 33 OF 2008.

BETWEEN

GABRIEL ONYANCHI SUNDIA

-VERSUS-

FRANCIS TOBIAS AKELLO.

REPUBLIC …………………………………..……......………PLAINTIFF

=VERSUS=

FUNYULA LAND DISPUTE TRIBUNAL              ...

BUSIA PRINCIPAL MAGISTRATE……………………  RESPONDENTS

AND

FRANCIS  TOBIAS AKELLO……………………INTERESTED PARTY

J U D G M E N T.

GABRIEL ONYANCHI SUNDIA, the exparte Applicant, through Balongo & company advocates, by the notice of motion dated 16th December, 2009 pray for an order of certiorari to call into this court and quash  ‘’the Provincial Land Dispute Appeal Committee  Western Province and Funyula  Land Dispute Tribunal Funyula Division’’ award dated 19th December, 2008 and subsequent orders in Busia PM Land Dispute   case No. 106 of 2008. The Exparte Applicant also prays  prohibition  order  against the  Funyula  Land Dispute Tribunal and Busia Principal  Magistrate court from  enforcing and executing the award/judgment  and  costs.

The Exparte Applicant named Funyula  Land Dispute Tribunal  and Busia  Principal  Magistrate as the Respondents.  He also named Francis Tobias Akello  as the Interested party.

The  application  is based on the following three grounds:

‘’    1.  That the Respondent exceeded its statutory jurisdiction  to cancel title in respect of L.R. Samia/Luanda – Mudoma/1369.

2. The Provincial Land Dispute Tribunal is unimplementable  without letter  of administration intestate being taken out in           respect of Lucas Sundia, Oduma Muga and Okochi Muga who are all deceased.

3. That the  decision of the Provincial Land Appeal Committee  Western Busia (sic) and Funyula Land Dispute Tribunal and all  subsequent  proceedings  are bad in law, null and void ab inition (sic) against  the rules of natural justice, inter alia and  should be quashed.’’

The Interested Party, Francis Tobia Akello opposed the application through the replying affidavit sworn on 13th October, 2010 and filed  through M/S. Nyandieka & Associates Advocates. The Interested Party deponed to the following among others;

That no leave was sought and obtained before filing the substantive application and therefore certiorari orders cannot  issue.

That the Exparte Applicant did not disclose that the application for leave  was time barred.

That the  annextures are not referred to in the verifying  affidavit.

The  relief sought in the application are different from those in the statutory statement.

The hearing  of this application  proceeded by way of written submissions.  The Exparte Applicant filed his dated  10th January, 2012 and 8th July, 2014. The Interested Party  filed written submissions dated 11th June, 2012 and 24th September, 2014.

I have  carefully considered the pleadings and submissions filed by the Exparte Applicant and Interested Party and before coming to the findings of the court, it is desirable to set out the details of the papers filed by the opposing sides.

THE START.

The Exparte Applicant moved this court through the Busia H.C. Misc. App. No. 153 of 2009 through  the chamber summons dated 9th September, 2009  and filed on 22nd  September, 2009. The chamber summons was filed together  with Affidavit  in support, statement of facts and verifying affidavit all dated and or sworn on 22nd Septemebr, 2009. To the Affidavit in support was annexed  a copy of Funyula  Land Dispute Tribunal proceeding and award in case No. 33 of 2008 and proceedings and extracted order in Busia PMC. Land  Dispute No. 106 of 2008 all marked ‘’GOSI.’’

That when the matter was first placed before the Judge on 7th October, 2009, a note  was made directed to the Deputy Registrar to ensure a copy of the award was availed.

The entry  by the Deputy Registrar  of 1st December, 2009 shows the earlier directions by the judge were complied with before the Honourable Judge granted  leave on 3rd December, 2009 in the following  terms;

‘’  Leave is hereby granted  to operate as stay.  Main  application  to be filed in 21 days.’’

That the exparte chamber summons dated 9th September, 2009 and filed on 22nd September, 2009  had sought for  the following order;

‘’ a)    The Applicant be  and  is hereby granted leave to file  for Judicial Review  seeking for orders of certiorari  quashing the award and findings of Funyula Land  Dispute Tribunal No. 33 of 2008 dated 19th December,  2008 and prohibition against Busia Principal  Magistrates Land Dispute No. 106  of 2008. ’’                                [Emphasize  mine]

It  is important  to note that the application  for leave does not mention anything to do with the award of the Provincial L:and Disputes Appeal Committee, Western  Province.  There was therefore no leave applied for and obtained to file  for certiorari orders to quash the decision of the Provincial Land Disputes Appeal Committee Western Province.

That the statement of facts on the reliefs sought states  at paragraph 2 (i) as follows;

‘’  i)        An order  for certiorari  directed against the  Provincial Land Dispute  Appeal Western Province to  remove  into  this court and quash the  decision/findings contained in their award dated 18th August, 2009 in respect of L.R. Samia/Luanda –   Mudoma/693. ’’

The statement of facts has made reference to the Funyula  Land Disputes Tribunal  in ground ‘’C’’ at page 2.

THE SUBTANTIVE APPLICATION

The notice  of motion dated 16th December, 2009 was  filed  on the same date 16th December, 2009.  It sets  out the order sought as follows:

‘’ a)     An order for certiorari do issue directed against the Provincial  Land Dispute Appeal  Committee Western Province  and the Funyula  Land Disputes Tribunal ,  Funyula Division to move this court and quash the award dated 19th December, 2008 in respect  of  L.R.Samia/Luanda – Mudoma/1369 together with the proceedings and subsequent adoption and judgment in Busia Principal  Magistrate Land Dispute No. 106 of 2008. ’’ [Emphasize mine]

FINDINGS.

Having  considered the materials  and evidence  presented to the court by both  the Exparte Applicant and Interested Party, the  court finds as follows:

That the  leave  granted  in Busia H.C.Misc. Application  No. 153 of 2009 was for filing a substantive application for orders of certiorari against  the ‘’ award  and findings of Funyula  Land Dispute Tribunal No. 33 of 2008  dated 19th December, 2008. ’’There  was no leave sought to file an application to quash the award and or finding of the Provincial Land Dispute  Appeal  Committee, Western  Province in  case No. 14 of 2009 which was  adopted in Busia PMC. Land  case No. 106 of 2008 on the 18th August, 2009.

That the  Exparte Applicant did not annex  or avail a copy of the Provincial  Land Dispute  Appeal Committee, Western Province award in case number 14 of 2009 during the leave application  stage and even during the filing and hearing of the substantive application.  The court  can only gather  what possibly the contents of their award was from the court order of 18th August, 2009 which was extracted  on 18th November, 2009 which is in the bundle  of documents  marked ‘’GOSI’’ and annexed  to the Affidavit  in support  sworn  by Gabriel  Onyachi Sundia on 22nd September, 2009.  Therefore as provided for under Order 53 Rule 7 (1)  of the Civil Procedure  Rules, the Exparte Applicant  cannot challenge the validity of the decision of the Provincial  Land Disputes  Appeals Committee Western Province.

That in  the absence of a copy  of the proceedings and award of the Provincial  Land Dispute  Appeal Committee ,Western Province, the court is unable to establish with certainty the date  of their decision in case No. 14 of 2009. The date cannot also be ascertained from the proceedings and order in Busia PMC. Land  case No. 106  of 2008 which is among the documents attached  to the Affidavit  in support and marked “”GOSI’’.  The Interested Party’s  contention  that the application for leave was made outside the six months period was specifically in reference to the date of the Funyula Land Disputes Tribunal’s decision and not the Provincial Land Disputes Appeal  Committee (See  paragraph 3 (ii) of the replying affidavit.)

That the Exparte Applicant  and the Interested party are in agreement that the Funyula Land Disputes Tribunal  decision  in Case No. 33 of 2008 was appealed in the Provincial  Land Disputes Appeals Committee, Western Province in case No. 14 of 2009.  It is further agreed by the two parties  that the Provincial Land Disputes Appeals Committee, Western  Province upheld the decision of the Funyula Land Disputes Tribunal. The application  for leave should therefore  have been  for leave for certiorari order to call into this court  and quash the decision of the Provincial Land Disputes  Appeals Committee and not Funyula Land Disputes  Tribunal.

That under Order 53 Rules 1 and  2 of the Civil Procedure Rules, leave  should be granted.   ‘’    If  the court considers, without  going into the matter in depth, that  there is an arguable case for granting leave,’’ as  held by the Court of Appeal in Samuel  Muchiri W’Njuguna &  6 others –vs- The Minister for Agriculture  & Another  Nairobi C.A.C.A No. 144 of 2000. The court further held that;

‘’     The  appropriate procedure  for challenging  such leave subsequently is by an application by the Respondent  under the inherent jurisdiction  of the  court, to  the judge  who  granted leave, to set aside  such leave.’’

The Interested Party  herein is challenging  the issuance of the leave through the submission in respect of the hearing of the substantive  application. The Interested Party ought to have  challenged the leave granted before  the hearing of the main application for judicial review  order but  did not do so. The challenge  of the leave could also have  been through  raising of a preliminary objection as confirmed in the case of Odinga & Others –vs- Nairobi city Council [1990 -1994] E.A.,482 and RE AN APPLICATION  BY GIDEON WAWERU GATHUNGURI [1962] E.A, 520.

The  Interested Party cannot therefore challenge the leave granted in Busia HC. Misc. Application 153 of 2009 through the submissions  in respect of the  hearing  of the substantive  application.

That notwithstanding  the finding  in (5)  above, and  considering both parties are in agreement that the decision  sought to be quashed  was made more than six months  from the date of filing of the application for leave in Busia HC. Misc Application 153 of 2009, the court is unable to exercise its discretion in favour of the Exparte Applicant for reasons of his failure to adhere to the requirements of Order 53 Rule 2 of the Civil Procedure Rule which is in similar terms with section 9 of the Law Reform Act. The superior courts have held time and again that the six  month period is mandatory  as shown in the following  Court of Appeal  cases.  Kimanzi Mboo-vs- David  Mulwa C.A.C.A No. 233 of 1996 and Wilson  Osolo –vs- John Ojiambo & Another  eKLR.

That  for the reasons  shown above the court  finds that the application for leave  was applied for outside  the six months statutory  window granted under Order 53 Rule 2 of the Civil Procedure Rule and section 9 of the Law Reform  Act and therefore,  the  court cannot exercise  its discretion in favour  of the Exparte  Applicant however deserving his application would otherwise be. The application is therefore dismissed with costs.

S. M. KIBUNJA.

JUDGE.

DATED AND DELIVERED ON 5TH DAY OF  NOVEMBER, 2014.

IN THE PRESENCE OF; Exparte Applicant, his  Advocate, Mr. Jumba and Interested Party and his advocate Mr. Juma.

JUDGE.