IN THE HIGH COURT OF KENYA

AT KISII

MISCELLANEOUS CIVIL APPLIC. NO. 33 OF 2011

AND

BETWEEN

AND

AND

RULING

1. The Ex-parte Applicant, Denis Otuoma Ojijo has moved this honourable court vide the chamber summons dated 29^th March 2011 for an order in terms of prayer (2) thereof, namely an order of Judicial Review in the nature of mandamus directed unto the Respondents herein to compel the magistrate/Magistrate’s court at Oyugis to adopt the decision of the Land Disputes Tribunal dated 5^th October 2010, and enforce the said decision as if it were a judgment of the said Resident Magistrate’s court in accordance with the mandatory provisions of section 7 (2)of the Land Disputes Tribunals Act, No.18 of 1990.

2. The application is supported by the grounds on the face thereof, the main one being that the honourable Resident Magistrate Oyugis Law Courts, vide its ruling dated 1^st February 2011 declined to adopt the award of the Tribunal as by law mandated. The application is also grounded on the Supporting Affidavit sworn by Denis Ojijo Otuoma on 29^th March 2011. The deponent reiterates the averments found on the face of the application and urges this court to allow the application as prayed. There is also the Statement of Facts and Verifying Affidavit of the applicant to support the application.

3. The application was opposed vide the Grounds of Opposition dated 3^rd May 2010 filed on behalf of the Interested Party. First it was contended that the application does not lie because the Senior Resident Magistrate’s court at Oyugis has already made a ruling refusing to adopt the Tribunal’s award as an order of the court. What the applicant should have done is to seek for an order of certiorari and not mandamus to bring before this court the decision of the said court for quashing. It was further submitted that the authorities relied upon by the applicant, which authorities I have carefully considered, are properly concerned with issues of certiorari and not mandamus.

4. For the avoidance of doubt in this matter, sections 7 and section 8of the Land Disputes Tribunals Act, No.18 of 1990provide as follows:-

5. The purpose of a mandamus application is to issue a command so as to arrest a situation where there is a duty of a public or quasi – public nature, or a duty imposed by statute; it compels the fulfillment of a duty where there is lethargy on the party of a body or officer concerned.   Like certiorari and prohibition, an order of mandamus would issue so as to right a recognizable public law wrong such as unlawfulness, unreasonableness or unfairness. See “An Outline of Judicial Review in Kenya: P.L.O. Lumumba, 1999.”

6. As is clear in this case, the Senior Resident Magistrate’s Court did not enter judgment in accordance with the decision of the Tribunal, but instead made a ruling refusing to enter judgment. What should ordinarily follow then is for the applicant herein to seek the leave of this honourable court to bring into court the said decision for purposes of being quashed, if it appears to the applicant herein that the process adopted by the said court in reaching the said decision/ruling was questionable. The procedure adopted by the applicant for the present application therefore cannot lie.

7. I have considered the authorities relied upon by the applicant in this case and note that the said authorities are clearly distinguishable from the present case. In Misc. Application No.47 of 2004 – Harrison Ndungu –vs.- Nakuru CM’s Court & another [2005] e KLR, the issue before the court was an application for the Judicial Review orders of certiorari and prohibition to have the proceedings before the CM’s court at Nakuru in Nakuru CMC Land Dispute No. 7 of 2002 – Kimunya Kamemia –vs.- Harrison Ndungu Kungu and particularly the order relating to the reading and adoption of the award made by Bahati Land Disputes Tribunal in its Land Disputes Tribunal Case 47 of 2002 brought to the High Court for quashing. That is the kind of application which the applicant herein should have brought, to question the ruling by the court at Oyugis refusing to adopt the award as a judgment of the court. That was also the position in Misc. Civil Application No.14 of 2009 – R. –vs.- Ng’arua Land Disputes Tribunal & another [2010] e KLR. This latter case dealt with the issue of leave to bring the judicial review proceedings, where it was argued that the leave had been sought and obtained outside the 6 months’ window fixed by law. The two authorities are therefore irrelevant in the circumstances of this case.

8. In conclusion, and without going into further detail, this application is bad in law is incompetent and cannot stand. The same is hereby dismissed with costs to the Interested Party.

9. It is so ordered.