[2001] KEHC 699 (KLR)
The court found that the applicant's transaction relating to the disputed agricultural land was null and void for lack of Land Control Board consent, as required by law. The applicant did not demonstrate possession of such consent, rendering the agreement with the vendor invalid. Furthermore, the proceedings in...
Source-derived case information.
- Citation
- [2001] KEHC 699 (KLR)
- Parties
- Plaintiff: Anthony Athana Ngotho; Defendant: Michael Mwambya Vita Mwambya; Applicant: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 733 of 1989
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Application to Be Joined as Interested Party
- Outcome
- application dismissed with costs to the respondent
- Judges
- JK Mulwa
- Legal Topics
- Preliminary Objection, Locus Standi, Land Control Board Consent, Title Deed Validity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Athana Ngotho
Plaintiff
Michael Mwambya Vita Mwambya
Defendant
__MISSING__
Applicant
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Application to Be Joined as Interested Party
Legal Issues
- 1 Whether the applicant has locus standi to be joined as an interested party in the suit.
- 2 Whether the application is competent given the status of the proceedings and the nature of the land transaction.
- 3 Whether the transaction relied upon by the applicant is null and void for lack of Land Control Board consent.
Ratio Decidendi
The court found that the applicant's transaction relating to the disputed agricultural land was null and void for lack of Land Control Board consent, as required by law. The applicant did not demonstrate possession of such consent, rendering the agreement with the vendor invalid. Furthermore, the proceedings in question had already been determined, and the applicant, having acquired interest in the land after the issuance of the title deed, lacked locus standi to be joined as an interested party. The preliminary objection raised a valid point of law, and the application was therefore incompetent and dismissed.
Court Disposition
application dismissed with costs to the respondent
Orders
- The preliminary objection is upheld.
- The application to be joined as an interested party is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 733 OF l989
ANTHONY ATHANA NGOTHO ::::::::::::::::::::::::::::::::: PLAINTIFF VERSUS MICHAEL MWAMBYA VITA MWAMBYA :::::::::::::::::::::: DEFENDANT
RULING
By a notice of Motion dated the 3l.l0. 2000 and filed on the same day, the applicant is asking for orders that the applicant be found as an interested party and for a further order the court reserves its judgment.
The plaintiff/Decree holder filed a notice of Preliminary Objection on points of law. For the objector Mr. Machira submitted that the application is incurably defective in that he order relied upon applies where there are proceedings, which have not been determined yet. In this application the proceedings were determined yet. In this application the proceedings were determined. He further argued that the matter was now resjudicatta. The intended Party has no loci standi in the case as he purports to have bought the land in l999 long after the title documents had been issued o l988.
Mr. Onyugi the learned Counsel for the applicant contented that this was not a proper preliminary objection based on law as the matters being relied upon are subject to verification.
A Preliminary Objection must raise a point of law which is argued on the presumption that all the other facts are correct. The point raised by Mr. Machura that the land in dispute is an agricultural www.kenyalawreports.or.ke land and therefore any transaction relating to this land must have a Land Control Board consent of the area. This is a point of law. Any transaction without the consent is null and void. The applicant did not say that he had such consent and it follows that his agreement with his vendor is not valid. Equally the fact that the plaintiff has a title deed to this land in a point of law which does not need explaining.
I agree with the submissions by Mr. Onyugi that the court has the power to recall decrees passed ex parte. I also accept his submissions that Order 44 rule l of the Civil Procedure Rules may allow the applicant to make the application he had filed. But the transaction the applicant seeks to bring before the court is null and void by operation of the law. It follows therefore that the application is incompetent.
I therefore find that the objection is valid and it is upheld. The application is dismissed with costs to the Respondent.
Dated this 4th Day of January 2001.
KASANGA MULWA
JUDGE