SILAS KINYUA M’MWETI v DISTRICT LAND ADJDUCATION AND SETTLEMENT OFFICER, IGEMBE NORTH DISTRICT, DIRECTOR, LAND ADJUDICATION AND SETTLEMENT, SENIOR PRINCIPAL MAGISTRATE’S COURT AT MAUA, CONSOLATA KABUTIA M’MWETI , M’MUJURI THILANGE, SILAS MURIUKI KARITHO, THIURI M’MUKARIA, HENRY KIBARA, JULIUS KATHERU, JOSEPH MUTUMA, IRUKI M’KAIRIAMA, FATHER MUTHOMI & GEOFFREY MANYORE & 2 others [2009] KEHC 1136 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

JUDICIAL REVIEW 46 OF 2009

IN THE MATTER OF THE LAND CONSOLIDATION ACT, CAP 283 OF THE LAWS OF KEN

AND

IN THE MATTER OF THE LAND ADJDUCATION ACT, CAP 284 OF THE LAWS OF KENYA

AND

IN THE MATTER OF THE MERU CUSTOMARY LAW OF INHERITANCE

AND

IN THE MATTER OF LAND PARCEL NUMBER 1541 & 1641 AKIRANGONDU “A” ADJUDICATION SECTION

AND

IN THE MATTER OF THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT MAUA CRIMINAL CASE NUMBER 1464 OF 2009

(Republic Vrs Silas Kinyua)

AND

IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT, CAP 26 OF THE LAWS OF KENYA

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION

BETWEEN

SILAS KINYUA M’MWETI ………………………. APPLICANT

VERSUS

THE DISTRICT LAND ADJDUCATION AND SETTLEMENT

OFFICER, IGEMBE NORTH DISTRICT ….. 1ST RESPONDENT

THE DIRECTOR, LAND ADJUDICATION AND

SETTLEMENT ……………………………….. 2ND RESPONDENT

THE SENIOR PRINCIPAL MAGISTRATE’S COURT

AT MAUA ……………………………………… 3RD RESPONDENT

AND

CONSOLATA KABUTIA M’MWETI … 1ST INTERESTED PARTY

M’MUJURI THILANGE ……………….. 2ND INTERESTED PARTY

SILAS MURIUKI KARITHO ………….. 3RD INTERESTED PARTY

THIURI M’MUKARIA ………………….. 4TH INTERESTED PARTY

HENRY KIBARA ………………………. 5TH INTERESTED PARTY

JULIUS KATHERU ……………………. 6TH INTERESTED PARTY

JOSEPH MUTUMA …………………… 7TH INTERESTED PARTY

IRUKI M’KAIRIAMA ……..…………… 8TH INTERESTED PARTY

FATHER MUTHOMI (In charge of K.K. Catholic, Catholic

Diocese of Meru, Tuuru Parish) …… 9TH INTERESTED PARTY

GEOFFREY MANYORE ……….…… 10TH INTERESTED PARTY

RULING

The ex parte applicant has moved the court by chamber summons dated 24th June 2009.  The application seeks leave to apply for an order of certiorari, an order of mandamus and an order of prohibition.  He then prays that the leave granted do operate as stay.

From the verifying affidavit of the applicant, it is clear that the background of this matter began from the time the lands in Kenya were consolidated and demarked.  The land in question 1541 AKIRANGONDU ‘A’ ADJUDICATION SECTION formerly belonged to the ex parte applicant’s father who is now deceased.  That land was in 1990 transferred by the applicant’s mother (1st interested party) to 2nd interested party.  It was then when the woes of the applicant began.  The 2nd respondent transferred his interest in that land to the 3rd interested party.  There was a portion of land that remained after the said transfers from the original land which the 1st interested party sold to 4th, 5th, 6th, 7th, 8th, 9th and 10th interested parties.  The ex parte applicant has variously tried to use the influence of the administration to reverse those transfers in vain.  He has been charged before criminal courts with acts attributed to him done on the said parcels of land.  Hence why he seeks an order of prohibition to stop Criminal Case No. 1464 of 2009.  He seeks order for certiorari to quash the decision of District Land Adjudication and Settlement officer.  He does not state anywhere when that decision was made.  I have considered the application and the affidavits on record.  Leave to file an order of certiorari cannot be sought more than 6 months after the decision sought to be quashed was made.  See O.LIII Rule 2 of the Civil Procedure Rules.  The ex parte applicant failed to state the date of the decision he seeks to quash, but from reading his affidavit, that decision could well have been in 1990.  Leave to file for certiorari cannot in view of that Rule be granted.  The order of prohibition to step the criminal trial has no basis either.  The issues raised by the applicant can very well be the defence he offers at that trial.  The prayer for leave to file for prohibition will also not be granted.  From the evidence, the ex parte applicants provided before court the only prayer which I find merited is for leave to file for an order of mandamus.The other prayers even for stay are not merited.  The order of the court is that this court does grant leave to the ex parte applicants to file for an order of mandamusas prayed in prayer No. 2 of chamber summons dated 24/6/2009.  The costs of that chamber summons shall be in the cause.

Dated and delivered at Meru this 8th day of October 2009.

MARY KASANGO

JUDGE