Republic v Symphrose Okalo Madegwa & 2 others Exparte Simon Emongor Enagai [2015] KEHC 3824 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

JUDICIAL REVIEW NO. 5 OF 2014.

IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS

IN THE MATTER  OF LAND AND ENVIRONMENT CASE NO. 143 OF 2013.

BETWEEN

SIMON EMONGOR ENAGAI AND SYMPHROSE OKALO MADEGWA

IN THE MATTER OF LAND PARCEL NUMBER NORTH  TESO/KOCHOLIA/1223, 1800,1449, 1420, 1421, 1422, 1423, 1424 AND 1425.

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

SYMPHROSE  OKALO MADEGWA :::::::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT

COUNTY LAND REGISTRAR, BUSIA:::::::::::::::::::::::::::::::::::::::::::2ND RESPONDENT

THE ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::::::::::::::::::::::3RD RESPONDENT

AND

SIMON EMONGOR ENAGAI::::::::::::::::::::::::::::::::::::::::::::::::::EXPARTE APPLICANT.

R U L I N G.

SIMON EMONGOR  ENAGAI,the Exparte  Applicant, filed the Notice of Motion dated 10th December, 2014  under Order 51 Rules 1, 2 and 3  of the Civil Procedure Rules, Sections 3 and 3A  of the Civil Procedure for;

an Order of certiorari to quash/nullify land  parcels North Teso/Kocholia/1800, 1419, 1420, 1421, 1422, 1423, 1424 and 1425 and restore them to North Teso/Kocholia/1223.

an Order  of mandamus to question  ‘’ by what authority  the 2nd Respondent  purported to sub divide the Exparte Applicant’s parcel of land known as  L.R. No. North Teso/Kocholia/1223 contrary to law.’’

Costs.

The application is based on six grounds  on the face of it marked (a) to (f)  and the Exparte  Applicant’s  supporting affidavit sworn on 10th December, 2014.

The Exparte Applicant named Symphrose Okalo Madegwa, County Land Registrar, Busia and The Attorney General as the 1st to 3rd  Respondent respectively. The court  notes that  there is no evidence  of service of the application  on any of the three respondents but  the 1st Respondent  must have been served as she filed a replying affidavit sworn on 3rd February, 2015 in opposition.  When  the application came up for hearing on 15th June, 2015, Mr. Okutta  and Mr. Wamalwa  advocates  for the Exparte  Applicant  and 1st Respondent  respectively presented their rival  submissions.

The following  are the main issues for the court’s determination in this matter;

Whether  leave to apply for the judicial review orders was obtained within six months  of the  date of the decision  sought to be quashed.

Whether  judicial review  orders can issue under Order 51 of the Civil Procedure Rules.

Whether the Exparte Applicant is entitled to the prayers sought.

The court has considered  the grounds on the application, submissions by both counsel, the supporting and replying affidavits and find as follows;

(a)  That the application dated  10th December, 2014 was filed with the  Applicant’s affidavit  sworn on the same date, to which he annexed documents particularized  hereinbelow;

Mutation  form for North Teso/Kocholia/2107 consisting of four pages,

Sketch  map,

Copy of a ruling in Busia ELC. No. 143 of 2013. (formerly H.C.C. No. 21 of 2007),

Copy of an order issued in Busia ELC. Misc. Civil  App. No. 95 of 2015 granting Exparte  Applicant leave  to file the substantive  application and stay orders in Busia ELC. No. 143 of 2013,

Copy of the order issued in Busia H.C.C.C. No. 21 of 2007.

The court notes that, though  the Applicant had in paragraphs 2 of the   affidavit  indicated that  a copy of the title  deed for North Teso/Kocholia/1223   marked SEE 1 had  been annexed , none  was traced  in the court record.

b)   That applications  for judicial review  are guided by Order 53  and not Order 51 Rules  1, 2 and 3  of the Civil Procedure Rules that was cited by the  Exparte Applicant.  Order  51  of the Civil Procedure  Rules makes provisions for  applications  other than those of  judicial review.  The   application is  therefore  defective.

c)   That before  filing an application for judicial review orders, a litigant is required           under Order 53  Rule 1  of the Civil Procedure  Rules  to apply for leave   [see  Lady Justice Joyce Kahminwa  -v- Judicial Service Commission  &   Another [2014] eKLR]. Under sub rule (2), the application for leave is required to be accompanied  by a statement  of facts.  ‘’ setting out the  name  and description  of the applicant, the relief  sought, and  the  grounds on which it is sought and by affidavits  verifying  the facts      relied on.’’

Though  the applicant  has annexed a copy of the order dated 25th November, 2014  issued at Bungoma in Busia  ELC. Misc. App. No. 95 of 2014,  granting leave and directing that the leave do operate as stay in Busia ELC. No. 143 of 2013, the copies of the statement of facts and affidavits verifying  the facts,  if any, were not annexed.  This court is therefore unable to confirm   whether the Exparte Applicant complied with Order 53 Rule 1  (2)  of   the Civil Procedure Rules  at the stage  of filing the application for leave.

1. That in absence  of the statement  of facts and verifying  affidavits , the court is unable to confirm  whether  the orders, and  or decisions the  Exparte Applicant seeks  to have called into  this court and quashed were  issued within six months of the date the application for leave was made.  The provision of Order 53 Rule 2 of the Civil Procedure  Rules  do not allow leave to file for orders of certiorari to be granted  if not applied for  before the  expiry  of six months from the date of the order or decision complained of.   This  court has no jurisdiction to extend  the statutory  period as confirmed in the following decisions from the  superior  courts: Republic  -v- Chairman Amagoro Land Disputes Tribunal & Another,  Exparte  Applicant, Paul Mafwabi  Wanyama Kisumu, CACA  No. 41 of 2013, James  Githinji  Kiara –vs- William  Wachira  Mwaniki [2005] eKLR, Kimanzi Mboo –vs- David  Mulwa CACA No. 233 of 1996 and Wilson  Osolo –vs- John Onjiambo &Another [1991]eKLR.

E)  That  the Exparte  Applicant  has not challenged  the 1st Respondent  affidavit  evidence sworn on 3rd February, 2013  that the subdivisions  and   transfers that he seeks to have quashed were transacted  between  1994  and 1997. This court is of the considered view that had the court dealing  with the application for leave been aware of these facts, the court would not have granted the leave application.   The court would have noted that the Exparte Applicant had been indolent and the proceedings he intended to   commence would be frivolous, vexatious, statute barred and an abuse of the  process of the court.  The route for judicial review is therefore not available to the  Exparte Applicant .(see Rosaline Tubei & 8 others –vs- Patrick  K. Cheruiyot  & 3 others [2014] eKLR, where the Honourable judge cited the  case  of Republic  -v- Mwangi Ngugi & 3 others, Exparte Haru Nguyai and Republic -v- The Minister for Lands  and Settlement &  others Mombasa HCMCA. No.1091 of 2006 and made the following finding  which this court agrees with;

‘’   17.  It is upon the Ex- parte  applicants  to find other avenues to push their grievances, for the door to access the remedy of  judicial review  is now firmly shut and the key to the door is not  available  for it was thrown  into the proverbial sea by effluxion of  time.’’

5. That having found as above, the court finds that the application dated  10th  December, 2014  must  fail and the following  orders are issued;

The application dated 10th December,  2014  is hereby dismissed with costs.

That the order  staying proceedings and or decree in Busia ELC. No. 143 of 2013 (formerly Busia H.C.C.C. No. 21 of 2007), issued at Bungoma  on 25th November, 2014  in Busia Misc. App. No. 95 of 2014  be and is hereby vacated.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON……8th ..DAY OF ……July,……2015.

IN THE PRESENCE OF;

EXPARTE APPLICANT…………………absent……………………………………

1ST RESPONDENT………   Present…………………………………………………

2ND RESPONDENT……………Absent…………………………………………….

3RD RESPONDENT…………   Absent ……………………………………………..

COUNSEL……Mr. Okutta for Applicant and Mr. Fwaya  for Situma  for 1st Respondent.

JUDGE.