Republic v Nambale Land Disputes Tribunal & Resident Magistrate’s Court at Busia Exparte David Ashibo Ndakalu & Paul Juma Otaga [2013] KEHC 817 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

MISCELLANEOUS CIVIL APPLICATION  NO. 191 OF 2009.

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

=VERSUS=

THE  NAMBALE LAND DISPUTES TRIBUNAL ………………  .1ST RESPONDENT.

THE RESIDENT  MAGISTRATE’S COURT AT BUSIA ………..2ND RESPONDENT.

-AND-

DAVID  ASHIBO NDAKALU …………………………………….EXPARTE APPLICANT

PAUL JUMA OTAGA……………………………………………..EXPARTE APPLICANT

-AND-

CHRISPINUS MANG’ENI WAMANYA…………………….THE INTERESTED PARTY

R U L I N G.

The 1st Applicant, David  Ashibo  Ndakula, filed the Notice of Motion dated  13. 12. 2012 against  the Interested party Chrispinus  Mangeni Wamanya,  for eviction  from Bukhayo/Kisoko/3221  and costs. The Application  is based on two grounds set out on the application and the supporting affidavit  of David  Ashibo Ndakalu sworn on 6. 12. 2012.

The application is opposed by the Interested Party who filed a replying affidavit  sworn on 7th March, 2013 .

Both  counsel  then filed written submissions.

I have carefully considered the grounds  on the face of the application, the supporting and replying submission plus written submission by counsel and find as follows;-

That  this matter was initially a judicial review application which was finalised on 19. 02. 2012 when the Nambale  Land Disputes Tribunal award in respect of Bukhayo/Kisoko/3221 was called into the court and quashed. The Interested Party  was ordered to pay costs and the record shows the costs were taxed and some agreement  reached on its payment.

That  the court did not  issue any other orders on ownership  or use of Bukhayo/Kisoko/3221, other  than quashing  the Tribunal order, and the application dated 13. 12. 2012 is not based on any orders issued by this court. There is also  no pending issue in this case that is awaiting determination.

That  as correctly submitted by Interested Party/Respondent party’s counsel, the  Applicant  ought to have proceeded by filing  an appropriate suit under which  he could have filed the current application, if  successful on the ownership determination.

That there are no other processes or motions that can be prosecuted  under this file other than those relating to costs, extraction and service of the court’s order issued on  19. 02. 2012. There is also no evidence of any appeal having been preferred or orders from the Court of Appeal to be executed.

For  reasons set out above, the Applicants’ application  dated 13. 12. 2012  is without basis  and is dismissed with costs.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 27TH DAY OF NOVEMBER, 2013  AT BUSIA.

IN THE PRESENCE OF;

JUDGE.