[2020] KEELC 2373 (KLR)
The court found that the preliminary objection was not aligned with the actual reliefs sought by the plaintiff, which included cancellation of land numbers and allotment letters and reversion to the original title. The court noted that the respondents failed to advance persuasive arguments to justify the preliminary...
Source-derived case information.
- Citation
- [2020] KEELC 2373 (KLR)
- Parties
- Applicant: Florence Makandi; Respondent: Attorney-General; Respondent: District Surveyor Meru; Respondent: District Land Registrar Meru; Respondent: County Government of Meru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 16 of 2019
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Government Proceedings Act, Preliminary Objection, Land Title Cancellation, Declaratory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Makandi
Applicant
Attorney-General
Respondent
District Surveyor Meru
Respondent
District Land Registrar Meru
Respondent
County Government of Meru
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit offends section 16 of the Government Proceedings Act by seeking reliefs not available against the government.
- 2 Whether the reliefs sought by the plaintiff are in the nature of injunction or specific performance prohibited by section 16 of the Government Proceedings Act.
Ratio Decidendi
The court found that the preliminary objection was not aligned with the actual reliefs sought by the plaintiff, which included cancellation of land numbers and allotment letters and reversion to the original title. The court noted that the respondents failed to advance persuasive arguments to justify the preliminary objection. The reliefs sought were not strictly in the nature of injunction or specific performance as prohibited by section 16 of the Government Proceedings Act, and the preliminary objection did not address the substance of the plaintiff's claims. Consequently, the preliminary objection was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 16 OF 2019
IN THE MATTER OF DISCOVERED FRAUD OF L.R NO. NTIMA/IGOKI/820 BY OFFICE PROFESSIONAL MISCONDUCT OF ALTERING L.R NO. NTIMA/IGOKI/820 TO NO. 302 IN THE MAP SHEET NO. 108/3/24/1 MERU MUNICIPAL OLD TOWN AND SUBSEQUENTLY SUB-DIVIDING INTO PLOTS NO. MERU MUNICIPAL BLOCK II 882 AND 883
AND
IN THE MATTER OF L.R NO. NTIMA/IGOKI/320 LOCALITY IN R.I.M (REGISTERED INDEX MAP) SHEET NO. 14 OF AND IN THE MATTER OF LAND OFFICER LETTER CONFIRMING L.R NO. NTIMA/IGOKI/820 WAS NOT COMPENSATED BY THE GOVERNMENT OF KENYA VIDE KENYA GAZETTE NOTICE NO. 1264 OF 1977
AND
IN THE MATTER OF MERU MUNICIPAL TOWN CLERK LETTER CONFIRMING L.R NO. NTIMA/IGOKI/820 WAS NOT COMPENSATED BY THE GOVERNMENT OF KENYA VIDE KENYA GAZETTEE NOTICE NO. 1264 OF 1977
BETWEEN
FLORENCE MAKANDI............................................APPLICANT/PLAINTIFF
LEGAL REPRESENTATIVE OF ANITA NKAIMURA M’MUTUNGI
VERSUS
ATTORNEY-GENERAL..............................1ST RESPONDENT/DEFENDNAT
DISTRICT SURVEYOR MERU................2ND RESPONDENT/DEFENDANT
DISTRICTLANDREGISTRARMERU.....3RD RESPONDENT/DEFENDANT
COUNTY GOVERNMENT OFMERU....4TH RESPONDENT/DEFENDANT
RULING
1. This ruling is in respect of the Preliminary Objection filed on 20. 9.2019 by the 1st – 3rd respondent where it is averred that this suit offends the provisions of section 16 of cap 40 laws of Kenya. The 4th respondent is in support of the Preliminary Objection.
2. Section 16 of theGovernmentProceedingsAct provides that;
“In any civil proceedings by or against the Government the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise give such appropriate relief as the case may require: Provided that—(i)where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties…………….”
3. The relief sought by the plaintiff in her pleadings are:
(a)“Cancellation of new numbers Meru municipal Block II and 883 and revert to original no. Ntima/Igoki/820.
(b) Cancellation of letters of allotment of plots no’s Meru Municipal Block 882 and 883 and revert to the plaintiff.
(c) Costs of the case”.
4. It is clear that the preliminary objection is not in tandem with the prayers sought. It is not lost to this court that no persuasive arguments were advanced by the respondents to warrant the filing of the Preliminary Objection.
5. The said preliminary objection is hereby dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED AT MERU THIS 28TH DAY OF MAY, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this ruling was given to the parties at the conclusion of the hearing and by a fresh notice by the Deputy Registrar. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE