[2014] KEHC 5313 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL SUIT NO.143 OF 2011

MUNICIPAL COUNCIL OF BUNGOMA.........PLAINTIFF/RESPONDENT

V E R S U S

BUNGOMA TEACHERS SAVINGS &

CREDIT SOCIETY LTD. …......................DEFENDANT/APPLICANT

RULING

1. The defendant/Applicant moved this Court with his application dated 14th March 2013 under Order 2 Rule 15(1)(d) seeking orders;

a) The suit be struck out

b) Costs be provided for

2. The application is supported by the grounds on its face and an affidavit sworn by Gabriel Wasike on behalf of the Applicant. In paragraph 4, the defendant depones they applied for and obtained registration of the suit plots in 2000. They submitted building plans which were approved in 2007. the applicants depones further that even after resolving to repossess the plots, the plaintiff/Respondent has still continued to demand for and receive rates which the applicant has duly paid.

3. The Applicant also aver that the Respondent granted it consent to amalgamate plots numbers 807-811 and thereafter subdivide into 20 plots. That after amalgamation of the suit plots, they were subdivided into Bungoma/Municipality 859 – 879 and annexed certificate of titles hence the suit land does not exist.

Finally the defendant averred the suit does not disclose no reasonable cause of action.

4. The plaintiffs/Respondent opposed the application and swore a replying affidavit. The Respondent depones the amalgamation was done without the plaintiff's knowledge or consent. Further clause 2 of the lease required the Applicant to develop within 24 months of date of registration of the lease. Their suit raises triable issues to be determined on merit.

5. The parties have filed their submissions which I have had occasion to read. I have also perused the pleadings filed.The plaint was filed on 7. 4.2011 in which the plaintiff sought that Plot No. Bungoma township/811 be repossessed and the title thereof be canceled.In paragraph 4 it is pleaded “That it was a term of the allotment that the deponent was to develop the plot within 24 months”

Paragraph 6 “On 17th November 2003, the plaintiff passed a resolution to repossess the said plot vide minute No.SP/TPD/42/23”.

6. It is clear from the Applicant's supporting affidavit that parcel No.811 did not exist as at 7th April 2011 when the suit was filed; the same having been amalgamated with other plots

During the process of amalgamation the plaintiff had given consent.

Secondly at the time the minutes was passed, the suit parcel was no longer a plot as it had been registered under Registered Land Act Cap 300 as at 12. 1.2000. The registration of the title took the Land administration out of the preview of the plaintiff and vested the same upon the proprietor (section 24 & 25 of LRA).

7. The plaintiff has been receiving rates from the defendant. As at the time the suit was filed, the plaintiff had approved development plans for the defendants (in 2007). The plaintiff/Respondent cannot therefore raise as a ground for breach of the lease that the Applicant failed to prevent building plans within 6 months.

In the R/A at paragraph 7, a letter is shown reminding the applicant to develop the land. This was before the approval in 2007.

8. I do find the application as merited for two reasons:-

First plot No. Bungoma/Municipality/811 did not exist at the time of filing suit. Secondly the plans for development in respect of the plots which 811 was initially a part of are already approved. Lastly the plaintiff/Respondent is receiving rates therefore there is no revenue it is losing. The particulars of loss of revenue were also not pleaded. I grant the application with costs of the application and of the suit.

DATED, SIGNED and DELIVERED this 13thday of May 2014

A. OMOLLO

JUDGE.