[2024] KEELC 13531 (KLR)
The court found that the 1st defendant, having failed to file written submissions as directed for the disposal of the preliminary objection, demonstrated a lack of interest and failed to prosecute the objection. The absence of any alternative method for disposal and the non-attendance of the objector and counsel...
Source-derived case information.
- Citation
- [2024] KEELC 13531 (KLR)
- Parties
- Plaintiff: Raphael Kenga Mwaruwa & 11 others; Defendant: Dr Tsuma Jembe; Defendant: Land Registrar Kilifi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 43 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection struck out for want of prosecution
- Judges
- FM Njoroge
- Legal Topics
- Preliminary Objection, Adverse Possession, Jurisdiction, Capacity to Sue, Estoppel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Kenga Mwaruwa & 11 others
Plaintiff
Dr Tsuma Jembe
Defendant
Land Registrar Kilifi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the 1st defendant has capacity to be sued in respect of the estate of the deceased.
- 2 Whether the determination of land appeal 26 of 1976 estops the plaintiffs from instituting proceedings.
- 3 Whether adverse possession proceedings must be instituted by originating summons under Order 37 CPR and not by plaint.
Ratio Decidendi
The court found that the 1st defendant, having failed to file written submissions as directed for the disposal of the preliminary objection, demonstrated a lack of interest and failed to prosecute the objection. The absence of any alternative method for disposal and the non-attendance of the objector and counsel further justified striking out the preliminary objection. The court exercised its discretion to strike out the notice of preliminary objection dated 15/1/2024 with costs to the plaintiffs and the 2nd defendant.
Court Disposition
preliminary objection struck out for want of prosecution
Orders
- The notice of preliminary objection dated 15/1/2024 is struck out.
- Costs awarded to the plaintiffs and the 2nd defendant.
Full Case Text
Judgment text and source record
19 paragraphs
Mwaruwa & 11 others v Jembe & another (Environment & Land Case 43 of 2023) [2024] KEELC 13531 (KLR) (2 December 2024) (Ruling)
Neutral citation: [2024] KEELC 13531 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 43 of 2023
FM Njoroge, J
December 2, 2024
Between
Raphael Kenga Mwaruwa & 11 others & 11 others
Plaintiff
and
Dr Tsuma Jembe
1st Defendant
Land Registrar Kilifi
2nd Defendant
Ruling
1. The preliminary objection herein dated 15/1/2024 has been filed by the 1st defendant. It is based on the following:That the 1st defendant lacks capacity to be sued in respect of the estate of the deceased;The determination of land appeal 26 of 1976 estops the plaintiffs from instituting proceedings;That the process of addressing or instituting proceedings for adverse possession is by way of originating summons under Order 37 CPR and not by plaint;That the court lacks jurisdiction to entertain this matter.
2. On 3/6/2024 this court ordered that the preliminary objection shall be disposed of by way of written submissions. none were filed by any party. Notably the objectors and his counsel were absent on 19/9/2024 when the matter came up for issuance of a ruling date. As no other method save written submissions had been prescribed by court for the disposal of the objection, the omission to file any submissions by the objector shows disinterest and is a failure to prosecute, and for that reason I strike out the notice of preliminary objection dated 15/1/2024 with costs to the plaintiffs and the 2nd defendant.
RULING DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 2ND DECEMBER, 2024. MWANGI NJOROGEJUDGE, ELC, MALINDI