[2007] KEHC 2757 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

Civil Appeal 35 of 2001

MATHIAS WERE DIFFU………...…….………APPELLANT

VS

PASCAL NAFUODO OJWANG………..….RESPONDENT

JUDGMENT

The appellant by his petition of appeal dated 25th June, 2001 raised six (6) grounds of appeal. At the hearing, the appellant sought leave to argue grounds 2 separately and grounds 1, 3, 4, 5 and 6 together. There being no objection from the respondent counsel, I granted leave to the appellant counsel.

In ground 2, it was argued on behalf of the appellant that the respondent had not complied with section 21(2) and 21 (4) of the Registered Land Act [Cap 300 Laws of Kenya was forcefully argued that, therefore, the learned trial Magistrate had no jurisdiction to entertain a boundary dispute which had not been referred to the District Land Registrar.

In ground 1, 3, 4, 5 and 6, it was argued on behalf of the appellant that the pleadings as drawn contravened the mandatory provisions of Order VI Rule 4 of the Civil Procedure Rules in that fraud was pleaded without itemizing the particulars thereof as enjoined by the provisions of Order VI Rule 8(1) of the Civil Procedure Code.

That the respondent claimed in the pleadings and in evidence that he is the registered proprietor of BUNYALA/BULEMIA/2195 yet he did not produce the title deed, official search or copy of the register.

That the respondent traces title BUNYALA/BULEMIA/138 to the year 1985. In this regard, he produced exhibit 1. Yet exhibit 1 is evidence that BUNYALA/BULEMIA/138 was in existence up to August 1990 when it was closed.

Last but not least, there is material contradiction on the evidence of PW1 and PW5 as to the origin of BUNYALA/BULEMIA/2195. Pascal Nafuodo Ojwang [P.W1’s] evidence is that it originated from Bunyala/Bulemia/138 while Claude Mangwachi [P.W5] evidence is that it is a first registration. The problem is compounded by the fact that the records were not produced even by the Land Registrar who was a witness of the appellant herein.

For the respondent, it was argued that a letter produced and marked exhibit 36 at page 36 of the proceedings conferred jurisdiction.

That the boundaries of parcels Nos 2195 and 2930 had been demarcated by the surveyor reacting to the letter to the respondent at page 32 of the proceedings and copied to the Land Registrar.

That they moved the court by way of plaint as opposed to the Originating Summons to determine the boundary. [See Order XXXVI Rule 3F which is couched in mandatory terms] However, even by plaint the same result could have been reached.

In respect of ground 1, 3, 4, 5 and 6 it was argued on behalf of the respondent that there is a cause of action captured in paragraphs 5 – 7 of the plaint. The suit was against the present appellant, Busia District Land Surveyor and the Attorney General. It was conceded that the Government Proceeding Act [Cap 40 Laws of Kenya] was not complied with but that the parties are before the court anyway.

Section 21 (2) of the Registered Land Act provides:

“Where any uncertainty or dispute arises as to the position of the boundary, the Registrar, on the application of any interested party, shall, on such evidence as the registrar considers relevant, determine and indicate the position of the uncertain or disputed boundary.”

Section 21 (4) of the Registered Land Act provides:

“No court shall entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in this section.”

In my judgment, the learned trial Magistrate clearly had no jurisdiction to entertain a boundary dispute which had not been referred to the District Land Registrar. That takes care of ground 2.

In respect of grounds 1, 3, 4, 5 and 6, it was argued forcefully that the pleadings as drawn contravened the mandatory provisions of Order VI Rule 4 of the Civil Procedure Rules in that, fraud was pleaded without itemizing the particulars thereof.

Order VI Rule 4 of the Civil Procedure Rules provides:

“A party shall in any pleadings subsequent to a plaint plead specifically any matter, for example, performance, release, payment fraud ….…………”

Order VI Rule 8(1) of the Civil Procedure Rules provides:-

“Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing-

(a) Particulars of any representation, fraud …….”

The pleadings so far as it relates to fraud is without particulars and this goes against the grain.

In my judgment, the pleadings as drawn clearly contravened the mandatory provisions of Order VI rule 4 as read together with Order VI Rule 8(1) of the Civil Procedure Rules which are couched in mandatory terms. Mandatory rules of procedure goes towards jurisdiction. The trial court should have struck out the plaint.

Last but not least, the plaintiff came by way of plaint as opposed to Originating Summons. Order XXXVI rule 3F of the Civil Procedure Rules provides:

“An application under the Registered Land Act other than under section 120, 128, 133, 138, 145 and 150 thereof shall be made by Originating Summons unless there is pending suit involving the same lands when the application may be made by summons in chambers in that suit.”

It is clear to me, that the correct procedure should have been by way of Originating Summons. Order XXXVI Rule 3F is couched in mandatory terms which goes towards jurisdiction. To the extent that the claim was initiated by plaint to that extent was the claim bad in law.

It was conceded that one of the parties to the suit was the Attorney General of the Republic of Kenya for and on behalf of the said Government. It is axiomatic that proceedings against the Government are initiated in accordance with the Government Proceedings Act. [Cap 40 Laws of Kenya]. There is no evidence on record that notice was issued to the Attorney General before the filing of the suit. This in my judgment is fatal.

In the result, I allow the appeal, set aside the judgment and orders of the Lower Court. I award the costs of this appeal to the appellant.

DATED and DELIVERED at Bungoma 22nd day of December, 2007.

N.R.O. OMBIJA

JUDGE

Mr. Ashioya for Balongo for the appellant.

Mr. Angima for Onsongo for the r