Republic v Senior Resident Magistrate, Winam Law Court & Maurice Adawo Onduru Ex-Parte Judith Akinyi Omondi [2017] KEELC 501 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC JUDICIAL REVIEW CASE NO.9 OF 2016

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

ORDER OF CERTIORARI AND PROHIBITION

BETWEEN

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

AND

THE SENIOR RESIDENT MAGISTRATE, WINAM LAW COURT

THE IN-CHARGE ADMINISTRATION POLICE (WINAM DIVISION)

MAURICE ADAWO ONDURU............................................RESPONDENTS

JUDITH AKINYI OMONDI........................................EXPARTE APPLICANT

JUDGMENT

1. Through  the notice of motion dated 12th October 2016, Judith Akinyi Omondi, the Exparte Applicant, seeks for an order of certiorari to remove into this court and quash the exparte order issued by the Senior Resident Magistrate’s Winam, the 1st Respondent, on the 15th September 2016 in Winam SRM Misc. Civil Application No.32 of  2016.  She also prays for an order of prohibition barring Administration Police In charge Winamand Maurice Adawo Onduru, the 2nd and 3rd Respondents respectively, from acting on or implementing the exparte order made and issued by the 1st  Respondent on the 15th September 2016.  The exparte Applicant also prays for costs.  The application is based on the statutory statement and verifying affidavit filed with it.

2. The application is opposed by the 3rd Respondent through his replying affidavit sworn on the 3rd March 2017.

3. The application came up for hearing on the 20th September 2017 when Mr. Nyasimi and Onyang’o, learned counsel for the Exparte applicant and 3rd Respondent respectively, made their oral submissions.

4. The issues for determinations by the court  are as follows;

a) Whether the exparte Applicant has established a case for quashing of the 1st Respondent’s order.

b) Whether the Exparte Applicant has made a reasonable case for prohibition order to issue against the 2nd and 3rd Respondents.

c) Who pays the costs.

5. The court has carefully considered the grounds on the statutory notice, affidavit evidence, submissions by counsel and concluded as follows;

a) That even though the 3rd Respondent may be the legally registered proprietor of the suit land, the way he initiated  Winam S.R.M. Miscellaneous Application No.32 of 2016 did not give or afford any opportunity to those who were  on the land, either as trespassers or otherwise, to be heard.

b) That the order issued by the 1st Respondent to the 2nd Respondent to provide security for the 3rd Respondent to level the land  shows that the 3rd Respondent knew of the existence of a  person or persons who are likely to object to the exercise.  The 3rd Respondent had therefore the obligation to enjoin such persons in the court process that he had filed so that they could be afforded the opportunity to be heard before any adverse orders could be issued against them.

c) That the failure by the 3rd Respondent to enjoin the people likely to be affected by the order to be issued, like the Exparte Applicant, and obtaining orders that if executed would displace them denied such persons the right to a fair hearing as required under Article 50 of the Constitution 2010.

d) That by the 1st Respondent issuing the order that it did without ensuring that all those who were likely  to be affected, like to Exparte Applicant, denied such persons the opportunity to be heard  and be accorded fair administrative action as required under Article 47 and 50 of the Constitution 2010 before they could be condemned.

6. That in view of the foregoing the court finds merit in the notice of motion dated 12th October 2016 and the same is allowed in terms of payers (a) and (b) with costs to be paid by the 3rd Respondent.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 6TH DAY OF DECEMBER 2017

In presence of;

Exparte Applicant           Absent

Respondents                 Absent

Counsel:     Mr. Nyasimi  for Exparte Applicant

M/S Bagwasi for Onyango for 3RD Respondent

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

6/12/2017

6/12/2017

S.M. Kibunja Judge

Oyugi court assistant

Parties absent

M/S Bagwasi for Onayngo for 3rd Respondent

Mr.Nyasimi for Exparte Applicant

Court: The Judgment dated and delivered in open court in presence of Mr. Nyasimi for the Exparte Applicant and M/S Bagwasi for Onyango for 3rd Respondent.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

6/12/2017