[2018] KEELC 14 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MIGORI

ELC CASE NO. 32 OF 2017

(Formely Kisii ELcc No. 614 of 2016)

JAMES ATITO MBOGO.....................................PLAINTIFF/APPLICANT

VERSUS

AGUGA OYAGA (Sued as legal Land Representative of

OBAGA OYAGA (Deceased)....................................................DEFENDANT

RULING

1. The plaintiff through T.T. Ng’ang’a & Associates sued the defendant by way of a plaint dated 17th November 2016 and filed in court on 21st November, 2016. He sought the following orders;-

a.The Judgment of the African court in Ndhiwa via Civil case No.28 of 1961 be the order of this honourable court and an order cancelling the survey sketch map adopting the initial natural boundaries separating LR.NO. Kabuoch Kawere/Karading/691 and LR. NO. Kabuoch/Kawere/Karading/683.

b.A permanent injunction do issue restraining the defendant, agents (s) or any person claiming under the defendant’s instructions or authority from entering, occupying and possessing any part of the parcel thereafter referred to as LR. NO. Kabuoch Kawere/Karading/691 on correction.

c.Costs of the suit be borne by the defendant.

d.Any other relief the honourable court be pleased to grant in the circumstance.

2. Briefly the plaintiff claims that he is the registered proprietor of the suit land which was fraudulently demarcated by the Government Surveyor in the year 1973 in favour of the defendant’s deceased father, Obago Oyago who got a bigger portion contrary to an award in Ndhiwa African Court Civil No. 28 of 1961. The plaintiff’s father, Mbogo Owino (deceased) lost the suit and moved out of the suit land. The plaintiffs’ deceased father and the defendants’ deceased father were given shares separated by a natural sisal boundary which the latter uprooted thus interfering with the natural boundary. The plaintiff filed an objection with the Land adjudication Department Migori on 20th August 1992 and Judgment delivered on the objection but the plaintiff was not able to get the determination of the objection, hence filed the instant suit.

3. By his statement of defence dated 21st November, 2017 and filed in court on 23rd November, 2017, the defendant represented by Ogogo Ayoma and Co. Advocates, denied the plaintiff’s claim and sought dismissal of the plaintiff’s suit with costs. He stated that defendant has no capacity to be sued since Obaga Oyaga (deceased) is survived by his wife, Salina Atieno Obago and Sons, Samwel Otieno Obago and Felix Omondi Obago who should be sued on behalf of the estate of their father. The defendant termed the suit premature and time barred. At paragraph 5 of the statement of defence, he issued notice of preliminary Objection on point of law against the plaintiff.

4. Learned counsel for the defendants filed a notice of preliminary objection dated 21st November 2017 on a point of law. The same is premised on the grounds that:-

a)The defendant does not have capacity to be sued on this suit since the deceased is survived by his wife Salina Atieno Obago sons Samwel Otieno Obago and Felix Omondi Obago who should be sued on behalf of the estate of Obaga Oyaga (deceased).

b)The suit is time barred due to limitation of time on the ground that it is over 25 years since the plaintiff claimed that he had lodged a dispute before the Land Adjudication Office to date.

5. On 14th March 2018, the court directed that the parties argue the preliminary objection by way of written submissions. The defendants counsel filed submissions dated 30th April 2018, and argued inter alia, that the suit lacks merit, it is premature and should be struck out with costs. The plaintiffs’ counsel filed no submission in this matter.

6. I have carefully considered and reviewed the pleadings, the preliminary objection and submission by counsel for the plaintiff. The issues for determination are whether the defendants have capacity to be sued and whether the suit is time barred.

7. It is common base line that an objection was filed by the plaintiff with the land adjudication officer further to an award in Ndhiwa African Court Civil Appeal No. 28 of 1961. This is discerned from paragraph 8 of the plaint and paragraph 7 of the defence. The plaintiff never obtained the outcome of his objection.

8. On whether the defendant has capacity to be sued, the defendants contended that the deceased, Obago Oyago had a wife and sons who should be sued on behalf of the estate of deceased. The term legal representative is defined under Section 2 of the Civil Procedure Act (Cap 21):-

“Legal representative” means a person who in law represents the estate of a deceased person and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;”

9. Order 4 Rule 4 of the Civil Procedure Rules, 2010 provides:-

“Where the plaintiff sues in a representative capacity the plaint shall state the capacity in which he sues and where the defendant is sued in a representative capacity the plaint shall state the capacity in which he sued, and in both cases it shall be stated how the capacity arises.”

10. Moreover, Section 79 of the Law of Succession Act (Cap 160 Laws of Kenya reads:-

“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.” (Emphasis provided)

11. In Muriithi Ngweya –v- Gikonyo Macharia Mwangi (2017) eKLR, L.G. Kemei,J took a position in a similar matter which position I find relevant and endorse accordingly. The court held inter alia that one could represent the estate of deceased person when a grant of representation had been made in respect of the estate of such deceased person under the Law of Succession Act.

12. There is no material presented to this court to reveal that the defendants are legal representatives of the estate of Obago Oyago (deceased) as required under Section 79 of the Law of Succession Act (Cap 160). In that regard, the defendant has no capacity to be sued by the plaintiff.

13. On whether the suit is statute barred, there is no dispute that the plaintiff filed an objection with the Land Adjudication Officer and the same was determined in the year 1992. Section 26 of the Land Adjudication Act (Cap 284) governs objection to adjudication register. Appeal from the objection is provided under Section 29(1) of the Act (Cap 284) which states that;-

“(1) Any person who is aggrieved by the determination of an objection under Section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by:-

a. Delivering to the Minister an appeal in writing specifying the grounds of appeal; and

b. Sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.” (Emphasis added)

14. In the case of Speaker of National Assembly –v- Njega Karume (1992) 1 KLR (EP) 425,the court of Appeal held, inter alia;-

“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed”

15. In Lepore Ole Maito –v- Letwat Kortom & 2 Others (2016) eKLR, J. Mutungi, J took a position which I fully approve and he rendered himself thus:-

“The Land Adjudication Act, sets an elaborate procedure through which the rights and interests of all persons is to be established and once that process and procedure is followed and completed the determination of such rights and interests is final. The Act provides an appropriate mechanism for resolution of any disputes. The minister is the apex in that dispute resolution mechanism and once an appeal is made to the Minister and determined under the provisions of Section 29 of the Act, such determination is deemed final and is not subject to any appeal. A party therefore aggrieved by the minister’s decision can only challenge such determination by way of judicial review and not otherwise if he considers the Minister acted wrongly or exceed his jurisdiction.”(Emphasis supplied)

16. In the instant suit, it is admitted that the plaintiff raised an objection with the Land Adjudication Officer and it was determined in the year 1992. There is nothing to show that the plaintiff appealed to the Minister as provided under Section 29 (1) of the Land Adjudication Act, 2016 (2012) (Cap 284). It was the plaintiff’s right to do so and he could even challenge the Minister’s decision by way of a judicial review and not otherwise; see Ole Maito case (Ibid). He filed this suit 24 years later. In the circumstances, I find the suit time barred and out of place in this court.

17. The defendants denied the plaintiff’s claim and raised the present preliminary objection. It is my considered view that the defendant had no capacity to be sued and time ran out against the plaintiff who failed to follow the mandatory and elaborate procedure under the Land Adjudication Act (Cap 284) thereof.

18. Based on the cited authorities and reasons, I find the defendant’s preliminary objection dated 24th November 2017 full on merit and I uphold it.

19. Accordingly this suit is dismissed with costs to the defendant.

DELIVERED, SIGNED and DATED in open court at MIGORI this 30th day of MAY, 2018.

G. M. A. ONGONDO

JUDGE

In the presence of;

Tom Maurice Court Assistant

G. M. A. ONGONDO

JUDGE