Republic v Josphat Kinyanjui Mukonyo, David Mbugua Mukonyo, Joseph Ndaba Mukonyo, Scheme Manager Mwea Irrigation Scheme & Principal Magistrate, Wang’uru Law Courts Ex-Parte Milka Wambui Ndaba & Solomon Mukonyo Ndaba [2019] KEELC 2802 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

ELC JUDICIAL REVIEW APPLICATION NO. 1 OF 2019

IN THE MATTER OF APPLICATION FOR ORDERS OF JUDICIAL REVIEW BY MILKA

WAMBUI NDABA AND SOLOMON MUKONYO NDABA

AND

IN THE MATTER OF THE IRRIGATION ACT CAP 347 LAWS OF KENYA

AND

IN THE MATTER OF LAND DISPUTE TRIBUNAL CASE NO. MWEA

SETTLEMENT SCHEME HOLDING NUMBER 1643 PROCEEDINGS

AND AWARD MADE ON 14TH APRIL, 2000

AND

IN THE MATTER OF WANG’URU CIVIL CASE NO. 7 OF 2000

AND AWARD MADE ON 22ND MAY 2000

BETWEEN

REPUBLIC......................................................................................................APPLICANT

VERSUS

JOSPHAT KINYANJUI MUKONYO...............................................1ST RESPONDENT

DAVID MBUGUA MUKONYO........................................................2ND RESPONDENT

JOSEPH NDABA MUKONYO.........................................................3RD RESPONDENT

THE SCHEME MANAGER MWEA IRRIGATION SCHEME...4TH RESPONDENT

PRINCIPAL MAGISTRATE, WANG’URU LAW COURTS........5TH RESPONDENT

AND

MILKA WAMBUI NDABA..............................................1ST EX-PARTE APPLICANT

SOLOMON MUKONYO NDABA..................................2ND EX-PARTE APPLICANT

RULING

The application before me is the Ex-parte Chamber Summons dated 29th  January 2019 brought under Order 53 Rule 1 (1) (2) and (4) C.P.R.  The Ex-parte Applicant is seeking the following orders:

(1) That the Ex-parte applicant be granted leave to bring an application for certiorari to remove into this Court and quash the proceedings and award of the Advisory Committee of the National Irrigation Board Mwea Irrigation Settlement Scheme made on 14th April 2000.

(2) That the Ex-parte applicant herein be granted leave to apply for orders of prohibition and mandamus against the Senior Scheme Manager of National Irrigation Board Mwea Irrigation Settlement Scheme to stop him from executing or proceeding to execute the award made on 22nd May 2000 relating to Rice Holding No. 1643 in favour of the Respondents herein or any other person and such execution if any be declared null and void and the Senior Scheme Manager be compelled to restore the entire Rice Holding in the names of the Ex-parte applicant herein as per the tenant changes made on 2nd day of August 1993 and also in compliance with the Irrigation (National Irrigation Scheme) Regulations made pursuant to Section 27 of the Irrigation Act Cap 347 Laws of Kenya.

(3) That this Honourable Court be pleased to order that the leave so granted do operate as a stay of execution and further proceedings arising from the award made on 14th day of April 2000 relating to Rice Holding No. 1643 Mwea Section until the determination of this application or until further orders of this Honourable Court.

(4)  That the costs of this application be provided for.

The application is premised on eight grounds apparent on the face of the said application supported by the affidavit of Milka Wambui Ndaba sworn on 29th January 2019.

Order 53 Rule 2 provides as follows:

“Leave shall not be granted to apply for an order of certiorari to remove any judgment order, decree, conviction or other proceedings for the purpose of its being quashed unless the application for leave is made not later than six months after the date of the proceedings or such shorter period as may be prescribed by any Act; and where the proceedings is subject to appeal and a time is limited by law for the bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired”.

The Ex-parte applicant in his list of documents has attached copies of proceedings and the impugned award made by the Land Disputes Tribunal Mwea on 14th April 2000 and adopted by Wanguru Magistrates Court on 2nd May 2000.  Order 53 Rule 2 C.P.R requires that an Ex-parte applicant should seek leave to quash such proceedings and award within six months.  It is now nineteen (19) years since the purported award was made.  Order 53 Rule 2 C.P.R is couched in mandatory terms.  It binds this Honourable Court not to grant leave where the proceedings and award sought to be quashed was issued more than six months.  That explains why Parliament found it wise to institute Ex-parte applications to seif incompetent Ex-parte Applications such as this which is brought more than six months after the award being challenged was issued.

Without much ado, I hereby proceed and dismiss the Ex-parte application dated 29th January 2019 for being incompetent and an abuse of the Court process.  I make no order as to costs.

READ and DATED in open Court at Kerugoya this 14th day of June, 2019.

E.C. CHERONO

ELC JUDGE

14TH JUNE, 2019

In the presence of:

1. M/S Nyangati holding brief for Mr. Nduku Nduki for Ex-parte Applicants