Silas Kinyua M’mweti v The District Land Adjducation and Settlement Officer, Igembe North District & 2 others

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

page 2 of 3

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 mandamus as 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

page 3 of 3