[2010] KEHC 2156 (KLR)
The court held that section 30(1) of the Land Adjudication Act is mandatory and requires written consent from the District Land Adjudication Officer before instituting any civil proceedings concerning land in an adjudication section. The plaintiff only produced a letter seeking consent, not the actual written...
Source-derived case information.
- Citation
- [2010] KEHC 2156 (KLR)
- Parties
- Plaintiff: Francis Sialo Memantik; Defendant: Lepore Ole Morui; Defendant: Samson Morui; Defendant: Paul Morui; Defendant: Land Registrar, Transmara; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 36 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- suit struck out for want of jurisdiction
- Legal Topics
- Adjudication Register Finality, Jurisdiction of Court, Consent Requirement, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Sialo Memantik
Plaintiff
Lepore Ole Morui
Defendant
Samson Morui
Defendant
Paul Morui
Defendant
Land Registrar, Transmara
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaintiff was required to obtain written consent from the District Land Adjudication Officer before instituting the suit concerning land in an adjudication section.
- 2 Whether failure to obtain such consent renders the suit incompetent and deprives the court of jurisdiction.
Ratio Decidendi
The court held that section 30(1) of the Land Adjudication Act is mandatory and requires written consent from the District Land Adjudication Officer before instituting any civil proceedings concerning land in an adjudication section. The plaintiff only produced a letter seeking consent, not the actual written consent required by law. There was no evidence that the adjudication register had become final or that the statutory consent had been granted. Consequently, the plaintiff lacked capacity to institute the suit, and the court lacked jurisdiction to entertain it. The suit was therefore struck out as a nullity for non-compliance with a mandatory statutory provision.
Court Disposition
suit struck out for want of jurisdiction
Orders
- The suit is struck out with costs to the defendants.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII Civil Case 36 of 2007
FRANCIS SIALO MEMANTIK...........................................................................PLAINTIFF/RESPONDENT
VERSUS
LEPORE OLE MORUI....................................................................................1ST DEFENDANT/APPLICANT
SAMSON MORUI...........................................................2ND DEFENDANT/APPLICANT
PAUL MORUI ................................................................3RD DEFENDANT/APPLICANT
LAND REGISTRAR, TRANSMARA.....................................................4TH DEFENDANT
ATTORNEY GENERAL.........................................................................5TH DEFENDANT
RULING
The 1st, 2nd & 3rd defendants filed an application dated 14th July, 2008 seeking an order to strike out the plaint filed on 27th March, 2007. The suit is in respect of a parcel of land known as plot No. 149, Osinoni Adjudication Section, hereinafter referred to as“the suit land.”The plaintiff sought a declaration that he is the sole and absolute owner of the suit land. That is inspite of a decision by the minister vide Appeal No. 167 of 1998 that the suit land belongs to one Mathew L. Sinteria.
The application was made on several grounds, one of them being that since the suit is within an adjudication section, the plaintiff was obliged to obtain consent of the District Land Adjudication Officer before commencing the suit, pursuant to the provisions ofsection 30 (1)of theLand Adjudication Actbut he did not do so.
The said provision of the law states as hereunder:
“30 (1) Except with the consent in writing of the
adjudication officer, no person shall institute, and
no court shall entertain, any civil proceedings
concerning an interest in land in an adjudication
section until the adjudication register for the
adjudication section has become final in
all respects under section 29 (3) of this Act.”
When does an adjudication register become final in all respects? It is when all the appeals emanating from a given adjudication section have been determined and the Director of Land Adjudication has altered the duplicate adjudication register to conform with the determinations and certified on the duplicate register that it has became final. He then sends details of the alterations and a copy of the certificate to the Chief Land Registrar.
In this matter, there is no evidence that as at the time the suit was commenced the adjudication register had become final. Consent of the area adjudication officer was therefore required. Was the consent obtained? The plaintiff’s response to that vital question is contained in paragraph 3 of his replying affidavit which is as hereunder:
“3. That I know of my own knowledge that before the
institution of the suit I sought for consent from the
District Land Adjudication Officer, Trans mara District.
Attached herein is a copy of the said letter for
application marked as FSM-01. ”
The said annexture is merely a copy of a letter dated 27th December, 2006 seeking consent to institute the suit. The same does not suffice as the consent referred to undersection 30 (1)of theAct. That provision of the law states that the consent must be in writing. Even if the plaintiff averred that after writing to the adjudication officer a verbal consent was given (which is not the case) that will still be unacceptable.
I am satisfied that the plaintiff failed to comply with a mandatory provision of the law. That renders the suit a non-starter. The plaintiff lacked capacity to institute it and the court equally lacks jurisdiction to entertain it. The suit is struck out with costs to the defendants.
Having come to that conclusion, I do not need to consider the other issues that were raised in the application. Without jurisdiction, it would be futile and a waste of judicial time to engage in any further proceedings.
DATED, SIGNED AND DELIVERED AT KISII THIS 22ND DAY OF JUNE, 2010.
D. MUSINGA
JUDGE.
22/6/2010
Before D. Musinga, J.
Mobisa – cc
Mr. Nyambati for the Plaintiff
Mr. Oguttu for the 1st, 2nd & 3rd Defendants
COURT: Ruling delivered in open court on 22nd June, 2010.
D. MUSINGA
JUDGE.