[2014] KEHC 4545 (KLR)
The court found that the revocation by Gazette Notice No. 6332 only affected one of the two suit properties (Mainland North/1/9593), while the other (9592) remained unaffected. Striking out the suit on the basis of revocation would unjustly dispose of claims relating to the property that was not revoked. The court...
Source-derived case information.
- Citation
- [2014] KEHC 4545 (KLR)
- Parties
- Plaintiff: Bajaber Limited; Defendant: Kenya Revenue Authority; Respondent: Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 315 of 2000
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Strike Out Plaint
- Outcome
- application dismissed
- Judges
- SN Mukunya
- Legal Topics
- Revocation of Land Grants, Limitation of Actions, Striking Out of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bajaber Limited
Plaintiff
Kenya Revenue Authority
Defendant
Commissioner of Lands
Respondent
Procedural Posture
Civil Case / Ruling on Notice of Motion to Strike Out Plaint
Legal Issues
- 1 Whether the revocation of the grants by Gazette Notice No. 6332 dated 6th June 2011 renders the suit incompetent and liable to be struck out.
- 2 Whether the action against the defendant is time-barred under the Limitation of Actions Act (Cap 22).
- 3 Whether the suit should be struck out in light of the revocation affecting only one of the two suit properties.
Ratio Decidendi
The court found that the revocation by Gazette Notice No. 6332 only affected one of the two suit properties (Mainland North/1/9593), while the other (9592) remained unaffected. Striking out the suit on the basis of revocation would unjustly dispose of claims relating to the property that was not revoked. The court also determined that the substantive issues regarding the legality of the revocation and the limitation period should be addressed at the full hearing of the suit, rather than at the interlocutory stage. Accordingly, the application to strike out the plaint was dismissed to allow the matter to proceed to hearing on its merits.
Court Disposition
application dismissed
Orders
- The application to strike out the plaint is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
COPY
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 315 OF 2000
BAJABER LIMITED.......................................................PLAINTIFF
- V E R S U S -
KENYA REVENUE AUTHORITY.....................................DEFENDANT
COMMISSIONER OF LANDS........................................3RD PARTY
RULING
[1] The defendant filed a Notice of Motion dated 22nd November, 2012 seeking for orders that the plaint filed on 28th June 2012 be struck out with costs. It asks for its counterclaim to be allowed as per prayers (a) (b) (f) and (g) with costs.
[2] The defendant firstly relied on the fact that the grants forming the subject matter of the suit parcel numbers section mainland north numbers 9592 and 9593 were revoked by Gazette Notice Number 6332 dated 6th June, 2011. That therefore the said revocation of the said grants removed the substratum of the suit rendering it frivolous incompetent baseless, scandalous and an abuse of the court process.
Secondly the applicant/defendant relied on the fact that the purported action against the defendant is time barred by virtue of the provisions of limitation of Action Act Chapter 22 of the Laws of Kenya in that the plaint makes a claim for trespass, yet the defendant and its predecessors have been in possession of the suit properties since 1975 a period of over 25 years before the institution of this suit.
[3] The plaintiff/respondent opposes this application. The respondents main grounds of opposition is that the said revocation was against land Title Mombasa North/1/9593 which was done on 8th June 2011 by the Registrar of Titles Mombasa. He argues that the Registrar is not vested with such powers by either the Constitution of Kenya or any other law. The plaintiff/respondent further argues that the said revocation was done in respect of Mombasa North/1/9592 and not 9593 and therefore striking out cannot succeed.
[4] I have carefully considered all the issues raised by the applicant in respect of striking out the suit. I have equally considered the reasons for the opposition of the application set out by the plaintiff/respondent. I have also carefully perused Kenya Gazette of 28th June 2011. The same only revokes Mainland North/1/9593. The suit properties in this case are Mainland North/1/9592 and 9593. It would then appear Plot no. 9592 has not been revoked. Striking out the suit on the ground of such revocation would therefore deal with both properties while one of them was not revoked.
[5] I need not go into the merits of whether the revocation was pursuant to the land or whether the suit properties were available for allocation or what is the law on striking out. All these issues shall be canvassed at the hearing of the suit. I am told that this suit is part heard. The prudent thing to do is to fix this suit down for hearing on merits. This will enable the real issue between the parties to be determined by the court. This application is dismissed with no order as to cost.
Dated and delivered in open court at Mombasa this 5th day of June 2014.
S. MUKUNYA
JUDGE
5. 6.2014
Mr. Asige Advocate for the plaintiff/respondent
Mr. Ibrahim Advocate for the applicant.