[2018] KEELC 979 (KLR)
The court found that the defendants' preliminary objection was premised on the assertion that the suit property was within an adjudication section, requiring written consent from the adjudication officer under Section 30 of the Land Adjudication Act. However, upon review of the affidavits and documents filed, the...
Source-derived case information.
- Citation
- [2018] KEELC 979 (KLR)
- Parties
- Plaintiff: Ibrahim Katana Mzungu; Plaintiff: Nicodemus Sulubu Katana; Plaintiff: Mzungu Taabu Justus; Defendant: Kahindi Kenneth Samuel; Defendant: Renson Kambi; Defendant: Thoya Mramba; Defendant: Philiph Mwamure; Defendant: Julius Angore
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 268 of 2016
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JO Olola
- Legal Topics
- Jurisdiction, Land Adjudication, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Katana Mzungu
Plaintiff
Nicodemus Sulubu Katana
Plaintiff
Mzungu Taabu Justus
Plaintiff
Kahindi Kenneth Samuel
Defendant
Renson Kambi
Defendant
Thoya Mramba
Defendant
Philiph Mwamure
Defendant
Julius Angore
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to entertain the suit in light of Section 30 of the Land Adjudication Act.
- 2 Whether the suit property falls within an adjudication section as defined by law.
Ratio Decidendi
The court found that the defendants' preliminary objection was premised on the assertion that the suit property was within an adjudication section, requiring written consent from the adjudication officer under Section 30 of the Land Adjudication Act. However, upon review of the affidavits and documents filed, the court was unable to locate any evidence, including the referenced annexture PM3, to confirm that the disputed land was indeed declared an adjudication section. In the absence of such proof, the court held that the preliminary objection lacked a factual basis and could not be sustained. The objection was therefore dismissed with costs.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 24th April 2017 and filed on 25th April 2017 is dismissed with costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CASE NO. 268 OF 2016
IBRAHIM KATANA MZUNGU..............................................................1ST PLAINTIFF
NICODEMUS SULUBU KATANA.........................................................2ND PLAINTIFF
MZUNGU TAABU JUSTUS....................................................................3RD PLAINTIFF
VERSUS
KAHINDI KENNETH SAMUEL........................................................1ST DEFENDANT
RENSON KAMBI.................................................................................2ND DEFENDANT
THOYA MRAMBA..............................................................................3RD DEFENDANT
PHILIPH MWAMURE........................................................................4TH DEFENDANT
JULIUS ANGORE................................................................................5TH DEFENDANT
RULING
1. This suit was filed on 10th October 2016. The three Plaintiffs pray for Judgment against the five Defendants jointly and/or severally for:-
a)An order of permanent injunction restraining the Defendants, their servants and/or agents from alienating and/or interfering and trespassing into the Plaintiff’s un-surveyed suit property situated at Bunyale.
b) Costs of the suit; and
c) Any other relief that the Court deems fit to grant.
2. Filed simultaneously with the suit is a Notice of Motion application of even date in which the Plaintiffs seek temporary orders of injunction to restrain the defendants as sought in the main suit pending the hearing and determination of the suit.
3. In a Replying Affidavit to the said application filed herein on 25th April 2017, the 4th Defendant/Respondent PhilipMwamure swears inter alia that the suit premises falls within Baricho Wakala Adjudication Section within Magarini Sub-County in Kilifi. On the same date they filed the Repying Affidavit, the 2nd, 3rd, 4th and 5th Defendants took out a Notice of Preliminary Objection stating as follows:-
“TAKE NOTICE that the 2nd, 3rd, 4th and 5th Defendants herein shall at the hearing of the Plaintiff’s Notice of Motion application dated 10/10/2016 or the main suit or as the case may be raise a Preliminary Objection against the entire suit upon the following grounds:-
1. That this Honourable Court lacks the requisite jurisdiction to entertain both the Application and the suit by dint of Section 30 of the Land Adjudication Act Cap 284 Laws of Kenya.
4. As at the time when the date for the Ruling on the Preliminary Objection was set, the Plaintiff had neither responded thereto nor filed any submissions thereon.
5. Section 30(1) of the Land Adjudication Act, Cap 284 of the Laws of Kenya provides that:-
“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 has become final in all respects under Section 29(3) of this Act.”
6. As I observed hereinabove, the Defendants objection is based on the averment contained at Paragraph 7 of the 4th Defendant’s Replying Affidavit in which he avers as follows:-
“7. That the suit premises falls within Baricho Wakala Adjudication Section within Magarini Sub-County, Kilifi County (Annexed hereto and marked as PM3 is a notice declaring the area an adjudication area in accordance with the Land Adjudication Act, Cap 284 Laws of Kenya).
7. As it were, I have gone through all annextures to the said Replying Affidavit sworn and filed herein on 24th April 2017. I have equally gone through all other documents filed by the parties herein. I was however unable to locate the said annexture PM3 referred to and/or any other document declaring the area under dispute an adjudication section.
8. That being the case, the Preliminary Objection dated 24th April 2017 and filed herein on 25th April 2017 has no legs to stand on. The same is dismissed with costs.
Dated, signed and delivered at Malindi this 11th day of October, 2018.
J.O. OLOLA
JUDGE