[2018] KEELC 3726 (KLR)
The court held that the claim for rectification of the land register is a matter exclusively within the jurisdiction of the Environment and Land Court, as provided by the Land Registration Act, 2012. Since the application was unopposed and the grounds were meritorious, the court found it appropriate to transfer the...
Source-derived case information.
- Citation
- [2018] KEELC 3726 (KLR)
- Parties
- Applicant: Elvin Leware Macager; Respondent: Land Registrar, Migori; Respondent: Maurice Otema Kadii; Respondent: Agricultural Finance Corporation
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 4 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Transfer, Injunction Maintenance, and Leave to Amend Plaint
- Outcome
- Application allowed in full.
- Judges
- GMA Ongondo
- Legal Topics
- Rectification of Land Register, Transfer of Suit, Injunction Orders, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elvin Leware Macager
Applicant
Land Registrar, Migori
Respondent
Maurice Otema Kadii
Respondent
Agricultural Finance Corporation
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Transfer, Injunction Maintenance, and Leave to Amend Plaint
Legal Issues
- 1 Whether the Environment and Land Court has exclusive jurisdiction to hear and determine the applicant's claim for rectification of the land register.
- 2 Whether the suit should be transferred from the Senior Principal Magistrate’s Court to the Environment and Land Court.
- 3 Whether the injunction order previously issued should be maintained upon transfer.
Ratio Decidendi
The court held that the claim for rectification of the land register is a matter exclusively within the jurisdiction of the Environment and Land Court, as provided by the Land Registration Act, 2012. Since the application was unopposed and the grounds were meritorious, the court found it appropriate to transfer the suit from the Senior Principal Magistrate’s Court to the Environment and Land Court. The court also found it just to maintain the existing injunction order and to grant leave for the applicant to amend the plaint, ensuring that the matter is properly before the competent court and that all parties have the opportunity to present their amended pleadings.
Court Disposition
Application allowed in full.
Orders
- The suit in Migori Civil Case No. 466 of 2014 is transferred to the Environment and Land Court, Migori for hearing and disposal.
- The injunction order issued on 10th April, 2015 and registered against Suna East/Wasweta 1/921 is to be maintained upon transfer.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT MIGORI
MISC CIVIL APPLICATION NO. 4 OF 2017
ELVIN LEWARE MACAGER.............................................APPLICANT
VERSUS
LAND REGISTRAR, MIGORI.................................1ST RESPONDENT
MAURICE OTEMA KADII.....................................2ND RESPONDENT
AGRICULTURAL FINANCE CORPORATION....3RD RESPONDENT
RULING
1. I have before me a Notice of Motion dated 28/2/2017 by the applicant represented by learned counsel, Mr. Nyauke. The applicant is seeking against the respondents the following orders :-
a. The suit filed by the applicant against the respondents being Mogori Civil Case No. 466 of 2014; Elvine Leware Macager Vs. the Land Registrar, Migori and 2 others in the Senior Principal Magistrate’s court be transferred therefrom to the Environment and Land court, Migori for hearing and disposal.
b. The order of injunction issued by Hon. Nyaga on the 10th April, 2015 in Migori Case No. 466 of 2014: Elvine Leware Macager Vs. the Land Registrar, Migori and 2 others and duly registered against the suit property Suna East/Wasweta 1/921 on the 7th April, 2015 be maintained upon transfer of the case.
c. Leave be granted to the applicant to amend his plaint and the intended amended plaint annexed hereto be deemed as duly filed and served on the respondents in compliance with the rules of this Honourable court.
d. The costs of this application be provided for.
2. I have noted all the grounds on the face of the Notice of motion, among them, that the declaratory orders sought by the applicant in the suit can only be issued by this court. Supporting affidavit sworn on 27/2/2017 by the applicant and annexed documents, also anchor the Notice of motion,
3. Mr. Maboga for the 4th respondent has no objection to the Notice of Motion.
4. The claim appears to be on the rectification of the suit land register, among others. It is a claim exclusively within the jurisdiction of this court as envisaged under Sections 2 and 80 of the Land Registration Act, 2012; See Wambugu –vs- Njuguna (1983) KLR 172
5. I find the notice of motion unopposed and merited.
6. I allow it accordingly.
7. Pursuant to order 3 sought in the Notice of Motion, the applicant’s intended amended plaint dated 24/2/2018, be deemed duly filed and be served on the respondents forthwith.
8. The respondents to amend, file and serve amended defence within the next 30 days from the date hereof.
9. The 1st and 2nd respondents be served accordingly.
10. Mention on 26/4/2018 for directions.
DELIVERED, SIGNED and DATEDin open court at MIGORI this 22nd day of February 2018.
G. M. A. ONGONDO
JUDGE
In the presence of:
Mr. Nyauke counsel for the Applicant present
Mr. Maboga counsel for the 3rd respondent
Mr. Tom -Court assistant
G. M. A. ONGONDO
JUDGE