[2017] KEHC 920 (KLR)
The court found that the plaint did not disclose any cause of action against the first defendant, as it failed to show any wrongdoing or legal basis for the claim. The issue of whether the first defendant is the registered owner of the plot is a factual matter to be determined at trial, but without a disclosed cause...
Source-derived case information.
- Citation
- [2017] KEHC 920 (KLR)
- Parties
- Plaintiff: Mutisya Ngau; Defendant: Peter Mutiso Mbithi; Defendant: Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 14 of 2007
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- plaint struck out with costs to the first defendant
- Legal Topics
- Preliminary Objection, Cause of Action, Jurisdiction, Registered Land Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mutisya Ngau
Plaintiff
Peter Mutiso Mbithi
Defendant
Commissioner of Lands
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaint discloses a cause of action against the first defendant.
- 2 Whether the first defendant is the registered owner of plot number 957.
- 3 Whether the court has jurisdiction in light of the alleged illegality of the consent and the status of the second defendant.
Ratio Decidendi
The court found that the plaint did not disclose any cause of action against the first defendant, as it failed to show any wrongdoing or legal basis for the claim. The issue of whether the first defendant is the registered owner of the plot is a factual matter to be determined at trial, but without a disclosed cause of action, the suit cannot proceed. Additionally, the court noted that the office of the second defendant does not exist, and any orders against it would be in vain. The preliminary objection was therefore upheld, and the plaint was struck out with costs to the first defendant.
Court Disposition
plaint struck out with costs to the first defendant
Orders
- The plaint is struck out.
- Costs awarded to the first defendant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL SUIT NO. 14 OF 2007
MUTISYA NGAU.....................................................PLAINTIFF
-VERSUS-
PETER MUTISO MBITHI..............................1ST DEFENDANT
COMMISSIONER OF LANDS..................... 2ND DEFENDANT
RULING
1) On the 26th July, 2017 the plaintiff and the first defendant agreed by consent to address the court on the issue of whether or not the latter is the registered owner of plot number 957 as demonstrated by the pleadings and documents already filed in court. Both parties agreed to do so by way of written submission which the plaintiff did on the 2nd August, 2017. The matter was fixed for mention on the 3rd October, 2017 with a view to confirming filing of sub-missions.
2) In his submissions, the plaintiff’s counsel cited the case of Mukisa Biscuits Co. ltd -Vs- West End Distributors Ltd [1969] EA 696 which defines what constitutes a preliminary objection and pointed out that whether or not the 1st defendant is rightfully sued is purely a question of fact which can only be addressed in the course of trial. The counsel added that the contention by the 1st defendant’s counsel that the pleadings and documents show that the 1st defendant is not the registered proprietor of plot number 957 does not necessary qualify that question as a pure point of law.
3) On his part the first defendants’ counsel submitted that from the pleadings by the parties herein and in particular the plaint, there is nothing to show what wrong the first defendant did in this matter and therefore there is no cause of action that has been shown against the first defendant.
4) The first defendant’s counsel went on to submit that this court lacks jurisdiction to hear this matter because the consent that was given was illegal since the consent should have been given to the plaintiff after her objection was heard by the land adjudication officer. The counsel pointed out consent cannot be given when the register was declared final by the minister and title deeds issued.
5) Finally the counsel submitted that the office of the second defendant does not exist and any orders directed to it shall be in vain and it was upon the plaintiff to amend her pleadings to include the proper party.
6) I have read the submissions, and my finding is as follows:- whereas I agree with the plaintiff’s counsel that the issue of whether or not the first defendant is the registered owner of plot number 957 is a question of fact which can only be determined upon trial, the pleadings and more particularly the plaint does not disclose the cause of action, if any, that the plaintiff has against the first defendant.
7) The above being the case, I am in agreement with the counsel for the first defendant that to proceed with suit would be a waste of time.
8) As regards non-existent of the office of the second defendant ad therefore rendering orders directed to it being in vain, section 7(1) of the Sixth Schedule of the Constitution comes into play but as earlier on observed, the plaint does not disclose a cause of action. In the circumstances, my finding is that the preliminary objection has merits and I proceed to strike out the plaint with costs to the first respondent.
Signed, Dated and Delivered this 29th day of November, 2017
MBOGO C.G
JUDGE
Ruling read aloud and dated in open court in the presence of the first defendant and in the absence his counsel as well as the plaintiff and Mr. Kwemboi court
assistant.
MBOGO C.G
JUDGE