[2008] KEHC 2570 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU

Civil Appeal 12 of 2003

NTHIGA NKANGA…………………………………………………….APPELLANT

V E R S U S

CHARLES NYAGA………………………………………...……….RESPONDENT

Land law

§ Suit incompetent unless prior consent in writing of Land Adjudication Officer is obtained.

The land Consolidation Act

(Cap 283 Laws of Kenya) s.8(1)

§ Court not to take cognizance of such suit (Land consolidation Act) S.8(3)

§ Civil Procedure

o Dismissal of appeal if Appellant fails to appear on hearing.

o Civil Procedure Rules Order XLI rule 14.

R U L I N G

This Ruling relates to an appeal dated 20th February 2001 and filed on 24th February 2001. There are two grounds of appeal namely-

(I) The trial Magistrate erred in dismissing the suit on the ground that there was no consent of the Land Adjudication Officer whereas in fact the consent had been applied for and obtained before filing of the suit,

(II) The trial Magistrate erred in law in his finding that the granting of the consent was not part of the pleadings whereas in fact the appellant specifically pleaded in the plaint that the consent had been obtained.

For those reasons the Appellant prayed that the suit be reinstated for trial, and the Appellant would pay the costs of the appeal.

The record shows that directions were taken before Lady Justice Sitati on 8th November 2005, by the Appellants Advocate, and the Appeal was fixed for hearing on 14th March 2006. On 14th March 2006 no hearing took place, and instead the Appellant’s representatives in the absence of a representative of the Respondent had the appeal fixed for hearing on 3rd October 2006, but no hearing took place on that date.

The appeal was again on 11th January 2007 by consent fixed by the parties representatives (Tom for Murango Mwenda learned counsel for the Appellant and C.B. Mwongela for the Respondent) for hearing on 5th June 2007 (5. 6.2007). On 18th May 2005 (18. 5.2007) during a call over (?) the matter was not confirmed for hearing. So on 29th June 2007 (29. 6.2007) the matter was again fixed for hearing on 27th November 2007 (27. 11. 2007) by representatives of the parties, (Lucy for Murango for the Applicant) and C.B. Mwongela for the Respondent. Yet again on 19th October 2007 (19. 10. 2007) the matter was not confirmed for hearing and was taken out of the hearing list for 27. 11. 2007 . It was subsequently on 28. 1.2008 (28th January 2008) fixed for hearing on 14th April 2008 (14. 04. 2008)

When this matter was called out early (about 9. 15 a.m.) there was no response from either counsel for the Appellant nor the Respondent’s counsel as neither counsel nor parties were present in court; and the file was put aside. When the file was called out late morning/early afternoon only the Respondent’s counsel responded. His application was that in the absence of the Appellant and his counsel and the appeal having been fixed for hearing by consent, the same be dismissed for want of prosecution and non attendance by the Appellant, and that costs be awarded to the Respondent.

Order XLI rule 14 of the Civil Procedure Rules provides that

14(1) “Where on the day fixed or on any day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, and has not filed a declaration under rule 10A(1) the court may make an order that the appeal be dismissed.

(2)Where the appellant appears, and the respondent does not appear and has not filed a declaration under rule 10A(3), the appeal may be heard exparte.

Rules 10A provides as follows:

10A(1) The Appellant may, with his memorandum of appeal file a declaration in writing that he does not wish to be present in person or by Advocate on the hearing of the appeal, together with two copies of such arguments as he desires to submit.

(2)The Registrar shall, where such declaration and arguments are filed cause a copy thereof to be served upon the respondent or his advocate.

(3)The respondent may file a declaration in writing stating that he does not wish to be present in person or by advocate on hearing of the Appeal, together with two copies of such arguments, as he desires to submit.

In this matter the appeal filed on 24. 2.2003 was not accompanied by any declaration as is envisaged by Rule 10A(1) of Order XLI, and the court is entitled to move under Order XLI Rule 14 and have the Appeal dismissed on the grounds of non appearance by the Appellant and in this case also his counsel. However before making any such order, the court is bound to consider the nature and grounds of the appeal, and establish whether there is any merit in it as a whole or any of the grounds.

The Appellant’s case is twin-fold, whether the consent had been applied for and obtained and whether the consent was part of the pleadings or pleading the obtention and existence of such consent in the Plaint is adequate, and satisfies the requirements of Section 8(1) of the Land Consolidation Act (Cap 283, Laws of Kenya). The said section says-

8(1) Subject to the provisions this section, no person shall institute and no court whatever shall take cognizance of, or proceed with or continue to hear and determine, any proceedings in which the ownership or the existence under native law or custom of any right or interest whatsoever in, to over any land in an adjudication area is called in question or is alleged to be in dispute unless the prior consent in writing of the Adjudication Officer to the institution or continuance of such proceedings had been given.

(2)No officer of any court whatever shall issue by plaint or other legal process for the institution or continuance of any proceedings which by virtue of the provisions of subsection (1) of this section are for the time being prohibited except upon being satisfied that the consent required by those provisions has been given.

(3)Nothing in the foregoing provisions of this section shall prevent the enforcement or execution of any final order or decision given or made in any proceedings in respect of any land in an adjudication area, where such order or decision is not the subject of a pending appeal at the time of the application of this Act to such land.

(4)A certificate signed by an Adjudication Officer certifying any parcel of land to be, or to have become on a specified date, land within an adjudication area shall be conclusive evidence that the land is such land.

(5)Every certificate purporting to be signed by an adjudication officer shall be received in evidence and be deemed to be so signed and without further proof, unless the contrary is shown.”

From the record of appeal, the proceedings before the learned Senior Resident Magistrate show that the Preliminary Objection referred to in paragraph 5D of the Amended Written Statement of Defence filed on 20/03/2001 was argued on 21. 1.2003. Mwongera learned Counsel for the Defendant relied upon the provisions of section 8(1) (above cited) that prior to filing suit relating to land in an adjudication area consent in writing of the Adjudication Officer must be obtained. Counsel also argued that an incurably defective suit cannot be cured by an amendment.

Mr. Mokua, learned Counsel who then urged the reply on behalf of the plaintiff/now appellant admitted that his firm had the consent, it was dated November 2000 and that the court could have it, as according to him s.8(1) does not say that the consent should be filed with the pleading and pleaded that the Preliminary Objection should be dismissed with costs to the Appellant. In the event the objection was allowed and the suit was struck out; hence this appeal.

Acknowledging that neither the Appellant nor his counsel was present to argue the Appeal, the real issue raised by the Appeal is what meaning is to be attributed to the requirements of Section 8(1) of the Land Consolation (Cap 283, Laws of Kenya). Whereas a court might have sympathy with Mr. Mokua, the Appellant’s then counsel’s submission that the said section does not expressly require the consent to be filed together with the plaint the court will not however ignore the requirement of the same section 8(2) expressly prohibiting any officer of court from issuing any plaint or other legal process…. “except upon being satisfied that the consent required by the provisions has been given”.

Indeed as Mwongela learned counsel for the Defendant then (and now the Respondent) put it before the trial magistrate, the only way a court will can take cognizance of a consent is if the same is filed with the suit. The fact that there is a copy of the consent in the file of the plaintiff’s, now the Appellant’s counsel, is not enough. If it were so, it would mean that the Plaintiff would take advantage of the Defendant.

I accept this understanding of the requirements of Section 8(1) of the Land Consolidation Act. The only way a court can be satisfied that the consent in writing of the Adjudication Officer has been obtained is by the prospective Plaintiff attaching to the plaint a copy of the written consent. It is not enough to state, as the plaintiff did on paragraph 7 of the Plaint dated 30th January 2001 and filed on 1st February 2001 that “the land Adjudication Officer has given me a consent to take this action after they failed to reach a settlement”. The averment does not even state the date of such consent in order to partially satisfy the court that it was indeed given prior to the filing of the suit. I say partially because such citation of date fixed “priority” in relation to filing suit. A submission by counsel later after filing suit that the consent had a prior date without production of the consent does not satisfy that strict requirement.

The short answer to the twin grounds of appeal of whether the consent to institute suit had been applied for and obtained, or whether merely pleading the obtention and existence of such consent in the Plaint is adequate, is that whether or not the consent in writing of the Land Adjudication Officer had been obtained, is a question of fact which can or could only be ascertained by the Plaintiff then, or his counsel producing it at the time of filing suit. Having failed to do so, the court could not entertain the suit. It is not adequate to merely plead its existence in the plaint. Its existence must be specifically endorsed by way of attachment to the plaint.

For those reasons, the Preliminary Objection on the point of law was well and properly taken by counsel for the Defendant in the lower court, and the learned Senior Resident Magistrate arrived at a correct decision in law, in allowing the objection and striking out the plaintiff’s suit. For the same reasons the Appellants appeal dated 30th January 2001 and filed on 1st February 2001 has no basis, and the same is dismissed with costs to the Respondent.

Dated and delivered at Meru this 23rd day of May 2008

M. J. Anyara Emukule

Judge.