[2009] KEHC 241 (KLR)
The plaintiff failed to demonstrate that the adjudication register for the relevant land section had become final as required by law, nor did he produce written consent from the adjudication officer authorizing the institution of the suit. Section 30(1) of the Land Adjudication Act expressly bars the institution and...
Source-derived case information.
- Citation
- [2009] KEHC 241 (KLR)
- Parties
- Plaintiff: Ben Orowe Oyugi; Defendant: Jashon Elisha Acholo Obado
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 84 of 2007
- Procedural Posture
- Civil Case / Judgment
- Outcome
- suit struck out for want of capacity; interlocutory judgment set aside; costs to defendant
- Legal Topics
- Land Adjudication, Trespass to Land, Capacity to Sue, Interlocutory Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ben Orowe Oyugi
Plaintiff
Jashon Elisha Acholo Obado
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff had legal capacity to institute the suit concerning land in an adjudication section before the adjudication register became final.
- 2 Whether the defendant trespassed onto the plaintiff's land and caused loss and damage.
- 3 Whether the plaintiff is entitled to general damages and a permanent injunction for trespass.
Ratio Decidendi
The plaintiff failed to demonstrate that the adjudication register for the relevant land section had become final as required by law, nor did he produce written consent from the adjudication officer authorizing the institution of the suit. Section 30(1) of the Land Adjudication Act expressly bars the institution and entertainment of civil proceedings regarding land in an adjudication section before the register is finalized or without the adjudication officer's consent. As these statutory preconditions were not met, the plaintiff lacked the legal capacity to bring the suit, rendering the proceedings incompetent. Consequently, the suit was struck out and the interlocutory judgment set aside.
Court Disposition
suit struck out for want of capacity; interlocutory judgment set aside; costs to defendant
Orders
- The suit is struck out with costs to the defendant.
- The order for interlocutory judgment is set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII
Civil Case 84 of 2007
BEN OROWE OYUGI...........................................PLAINTIFF
-VERSUS-
JASHON ELISHA ACHOLO OBADO.................DEFENDANT
JUDGMENT
There is land parcel No. 1100 Kasrime Adjudication Section situated within Kwabwayi West Location Ndiwa Division of Homa Bay District which was adjudicated by Kasrime Land Committee to belong to the plaintiff (exhibit 1). The defendant objected to the findings of the Committee but was not successful (exhibit 4). He appealed to the Minister undersection 39(1) of the Land AdjudicationAct,Cap 284 of the Laws of Kenya.The appeal was heard by the District Commissioner, Homa Bay on behalf of the Minister. The appeal was dismissed.
The plaintiff has brought this suit against the defendant claiming the latter trespassed onto a portion of the land on 5/1/1999 and on 1/1/2007 which he annexed and put up a home thereon to the former’s detriment. The plaintiff claimed he was suffered loss and damage as the invasion was without excuse or lawful justification. He sought general damages for the trespass and a permanent injunction against the defendant.
The defendant did not enter Appearance or file Defence. On 12/9/2008 an interlocutory judgment was entered.
The plaintiff appeared before me for formal proof and gave evidence. It was same evidence as indicated above. He sought the orders prayed in the plaint. He was represented by Mr. Orengo.
Section 30(1)of the Actabove provides as follows:
“30(1) except with the consent in writing of the adjudication officer, no person shall institute and no Court shall entertain, any Civil proceeding concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act”
The Plaintiff did not plead or give evidence that, in respect of the land adjudication section in which this parcel falls, all appeals have been determined. When all appeals have been determined then, undersection 29(3),the Director of Land Adjudication shall alter the duplicate adjudication register to conform with the determinations, and certify on the register that it has become final in all respect, etc. The Plaintiff did not produce in evidence any written consent by the adjudication officer authorizing the bringing of this action.
The consequence is that the plaintiff had no capacity to bring this suit. The same is incompetent and is struck out with costs. The order for interlocutory judgment is set aside.
Dated, signed and delivered at Kisii this 27th day of November, 2009.
A.O.MUCHELULE
JUDGE
27/11/2009
Before A.O.Muchelule-J
Mongare court clerk
Mrs. Asati for Mr. Orengo for plaintiff
COURT:Judgment in open court.
A.O.MUCHELULE
JUDGE
27/11/2009