Case Metadata |
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| Case Number: | Civil Miscellaneous Application 79 of 2002 |
|---|---|
| Parties: | Henry Amwayi Ndete v Chairman Land Disputes Tribunal & another |
| Date Delivered: | 09 Jul 2002 |
| Case Class: | Civil |
| Court: | High Court at Bungoma |
| Case Action: | Ruling |
| Judge(s): | Aaron Gitonga Ringera |
| Citation: | Henry Amwayi Ndete v Chairman Land Disputes Tribunal & another [2002] eKLR |
| Court Division: | Civil |
| County: | Bungoma |
| Case Summary: | Henry Amwayi Ndete v Chairman Land Disputes Tribunal & another High Court, at Bungoma July 9, 2002 Ringera J Civil Miscellaneous Application No 79 of 2002 Judicial Review – certiorari – application for certiorari - form of application – nature, basis and scope of relief – statutory basis – requirement that application should be in the name of the Republic – failure to institute the motion in the name of the Republic - applicant seeking “writ of certiorari” - whether court has jurisdiction to grant such writ - whether the Civil Procedure Rules apply to an application for judicial review under order LIII of the Civil Procedure Rules - Law Reform Act (cap 26) sections 8, 9. This application sought the prerogative writ of certiorari to issue against the decision of the Land Disputes Tribunal, as it had allegedly acted in excess of its powers. The respondents objected that the application was defective as it was not in the name of the republic. The applicant contended that the Civil Procedure Rules order 6 rule 12 provided that no pleading should be objected to for want of form. Held: 1. An application for Judicial Review should be made in the name of the Republic. 2. The Law Reform Act (cap 26) section 8(1) which enactment is the statutory basis for the grant of the reliefs of certiorari, mandamus or prohibition, expressely forbids the High Court from issuing any of the prerogative writs of mandamus, prohibition or certiorari. However, subsection 2 does empower the court to issue orders of mandamus, prohibition or certiorari is cases as the High Court in England would do under the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act 1938 of the United Kingdom. 3. This application sought in express terms a prerogative writ of certiorari a relief which the court is expressely barred by statute from issuing. 4. The Civil Procedure Rules Order 53 is a special jurisdiction, as the rules therein are not made under the Civil Procedure Act but under the provisions of section 9 of the Law Reform Act, as illustrated by a reference to the very first rules made in connection with prerogative orders in 1957. 5. The Civil Procedure Rules Order 6 rule 12 is made under the provisions of section 81 of the Civil Procedure Act and has no application to proceedings brought pursuant to order 53 which is promulgated in pursuance of the provisions of section 9 of the Law Reform Act. 6. Even if the failure to intitule the motion in the name of the Republic were an error of form curable by order 6 rule 12, which it is not; the prayer for a prerogative writ is not such an error of form. It is an error of substance in that a relief excluded by the statute is expressly sought. Application struck out. Cases Farmers’ Bus Service v Transport Licensing Appeal Tribunal [1959] EA 779 Statutes 1. Civil Procedure Act (cap 21) sections 3A, 81 2. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 12; order L rule 12; order LIII rules 1, 2 3. Registered Land Act (cap 300) 4. Law Reform Act (cap 26) sections 8(1), 9 5. Administration of Justice (Miscellaneous Provisions) Act 1938 [UK] |
| Case Outcome: | Application struck out. |
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL MISC APPLICATION NO. 79 OF 2002
HENRY AMWAYI NDETE…………………….………. APPLICANT
VERSUS
CHAIRMAN LAND DISPUTES TRIBUNAL………..RESPONDENT
AND
ELIZABETH ANYOKLO OKOYANA….......….INTERESTED PARTY
RULING
In this motion on notice, Henry Amwayi Ndete, who describes himself as the Applicant, seeks the prerogative writ of certiorari to issue to remove to this court for purposes of its being quashed the decision of the Land Disputes Tribunal made on or about 6.3.2002 and all consequential orders of the lower court purporting to adopt the same on 19.4.2002 purporting to excise and alienate the whole of 4 acres of his land known as KISA/EMESATSI/1082. The motion is expressed to be brought under section 3 A of the Civil Procedure Act, order L III rule 1 and (2) of the Civil Procedure (amendment) rules, 1992 and the order of court issued on 19.4.2002. The motion is grounded essentially on the proposition that the Land Disputes Tribunal acted in excess of its jurisdiction as it could not have adjudicated on a matter concerning beneficial ownership of Land Registered under the Provisions of the Registered Land Act, Cap.300 of the Laws of Kenya.
Both the respondent and the interested parties have objected to the motion on grounds that the same is fundamentally defective in that it has not been made in the name of the Republic. They rely on the case of FARMERS BUS SERVICE V TRANSPORT LICENSING APPEAL TRIBUNAL (1959) E.A. 779. Counsel for the applicant replies that order 6 rule 12 provides that no pleading should be objected to for want of form and that order 50 rule 12 also saves any application which does not recite the provisions of law under which it is made.
I have considered the arguments. It is established law that applications for certiorari mandamus or prohibition should be made in the name of the Republic. The case of FARMERS BUS SERVICE V TRANSPORT LICENSING APPEAL TRIBUNAL (1959) E.A. 779 held that such applications should be made in the name of the crown. When Kenya became a Republic in 1964, the crown was superseded in all legal proceedings to which it was a party by the Republic. The application for judicial review therefore ought to be made in the name of the Republic. This one is not.
Secondly, section 8 (1) of the Law Reform Act, Cap. 26, which enactment is the statutory basis for the grant of the reliefs of certiorari, mandamus or prohibition, expressly forbids the High Court from issuing any of the prerogative writs of mandamus, prohibition or certiorari. Subsection (2) does however empower the court to issue orders of mandamus, prohibition or certiorari in like cases as the High Court in England would do under the provisions of section 7 of the Administration of Justice (Miscellaneous provisions) Act, 1938 of the United Kingdom. The present motion seeks in express terms a prerogative writ of certiorari - a relief which the court is expressly barred by statute from issuing.
In the premises, the only issue here is whether the two shortcomings in the motion are errors of form which should not prejudice the application by dint of order 6 rule 12 and order 50 rule 12 of the Civil Procedure rules.
I am afraid that they are not. For a start, order 50 rule 12 has no application to the matter as the complaint is not that the applicant has failed to recite the provisions of law under which the motion is brought: It is that the applicant is not the proper applicant in law.
As regards order 6 rule 12, the same does not also avail the applicant. Order 53 of the Civil Procedure rules is a special jurisdiction. The rules embodied therein are not made under the civil Procedure Act but under the provisions of section 9 of the Law Reform Act. This fact which appears not to be well known or appreciated is only too well illustrated by a reference to the very first rules made in connection with prerogative orders in 1957. Order 6 rule 12 is made under the provisions of section 81 of the civil Procedure Act and has no application to proceedings brought pursuant to order 53 which is promulgated in pursuance of the provisions of section 9 of the Law Reform Act. Further more, the applicant seeks a relief which the statute itself bars the court from granting. Even if the failure to intitule the motion in the name of the Republic were an error of form curable by Order 6 rule 12 - and I hold it is not - the prayer for a prerogative writ is not such an error of form. It is an error of substance in that a relief excluded by the statute is expressly sought.
In the result, I uphold the objections by counsel for the respondent and counsel for the interested party and order struck out the motion on notice with costs to both the respondent and the interested party.
Dated at Bungoma this 9th Day of July 2002.
A.G. RINGERA
JUDGE
JUDICIAL REVIEW
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