[2001] KEHC 689 (KLR)
The court found that the consent dated 4.4.95 from the land adjudication officer was sufficiently broad to cover all proceedings arising from Civil Appeal No. L.17 of 1976, including the present appeal. The language of the consent indicated that it was intended to remain operative until the adjudication process was...
Source-derived case information.
- Citation
- [2001] KEHC 689 (KLR)
- Parties
- Appellant: Muthoka Ngumi; Appellant: John Ndunda Musyimi; Respondent: Sammy K. Mutunga
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 43 of 1996
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection to Strike Out Appeal
- Outcome
- application to strike out appeal refused
- Legal Topics
- Appeal Procedure, Land Adjudication Consent, Striking Out Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muthoka Ngumi
Appellant
John Ndunda Musyimi
Appellant
Sammy K. Mutunga
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for lack of a fresh land adjudication officer's consent under section 30 of the Land Adjudication Act.
- 2 Whether the consent dated 4.4.95 covered all subsequent proceedings including the present appeal.
Ratio Decidendi
The court found that the consent dated 4.4.95 from the land adjudication officer was sufficiently broad to cover all proceedings arising from Civil Appeal No. L.17 of 1976, including the present appeal. The language of the consent indicated that it was intended to remain operative until the adjudication process was fully completed and final orders issued. Therefore, a fresh consent was not required for the current appeal, and the application to strike out the appeal was refused.
Court Disposition
application to strike out appeal refused
Orders
- Application to strike out the appeal is refused with costs.
- Parties to proceed to have the appeal heard.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
civ app 43 of 96
MUTHOKA NGUMI ::::::::::::::::::::::::::::::: :::::::::::: 1 ST APPELLANT
JOHN NDUNDA MUSYIMI :::::::::::::::::::::::::::::::: 2 ND APPELLANT
VERSUS
SAMMY K. MUTUNGA :::::::::::::::::::::::::::::::::::::::: RESPONDENT
R U L I N G
The applicant under O.41 rr. 1, 2 SS.3A, 79 G Civil Procedure Act and O.6 r. 13(b) (d) wants this appeal struck out because of, so Mr. Kisongoa submitted, a land adjudication officer’s consent under S.30 of the Land Adjudication Act (Cap.284). The court heard that the consent (contained in the appeal record at pp.16) dated 4. 4.95 only related to Civil Appeal L.17 of 1976 in respect of Plot No.610 IKALYONI ADJUDICATION SECTION, MAKUENI. That when that proceeding ended in the lower court with the judgement of 6. 9.96, a fresh consent had to be sought to commence this appeal.
Mr. Makau clarified that their appeal is based on the judgement of the lower court dated 8. 5.96. Such judgement, and that is what the preamble to the appeal herein stated, was nowhere on the record of appeal. At page 13 and 14 it can be read: “COURT. Judgement on 8. 5.95” There then follows a RULING “Dated 8. 5.96” Anyway Mr. Makau said that with the right of appeal from the lower court rulings and judgements, the consent of 4. 4.95 was meant to extend and cover all stages in the proceedings in respect of the appeal No. L.17 of 1976. This court is inclined to agree with Mr. Makau, that all proceedings following Civil Appeal No. L.17 of 1976 were covered with the consent of 4. 4.95. Therein the land adjudication officer enjoined: “2. In order to complete the Adjudication Register for the Ikalyoni Adjudication Section, I shall in due course require a copy of the final orders made in each of the cases listed (sic) in the schedule” (Underlining supplied) The case listed was No. L.17/1976. It was heard by the lower court. The dissatisfied party exercised the right to appeal here, and this is the appeal. It can be prudently considered that the consent of 4. 4.95 is still operative until the machinery is exhausted and final orders issue for the land adjudication officer to take and therefore complete the relevant adjudication register.
Orders refused with costs. Parties to proceed to have the appeal heard.
Orders accordingly.
Delivered on 27th September 2001.
J. W. MWERA
JUDGE