[2018] KEELC 1202 (KLR)
The court found that the preliminary objection raised by the 1st interested party lacked merit. The applicant, as the 2nd interested party, was properly enjoined in the proceedings, and the issues raised did not render the court functus officio. The application did not fall within the narrow scope of section 99 of...
Source-derived case information.
- Citation
- [2018] KEELC 1202 (KLR)
- Parties
- Plaintiff: Paresh Narandash Sedani; Respondent: The Land Registrar, Vihiga; Respondent: The Resident Magistrate, Vihiga; Interested Party: Samson Angolo Timothy Osiru; Interested Party: Charles Sigu Otieno
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 219 of 2016
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection and Notice of Motion
- Outcome
- preliminary objection overruled
- Judges
- NA Matheka
- Legal Topics
- Judicial Review Procedure, Functus Officio, Land Registration Disputes, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paresh Narandash Sedani
Plaintiff
The Land Registrar, Vihiga
Respondent
The Resident Magistrate, Vihiga
Respondent
Samson Angolo Timothy Osiru
Interested Party
Charles Sigu Otieno
Interested Party
Procedural Posture
Judicial Review / Ruling on Preliminary Objection and Notice of Motion
Legal Issues
- 1 Whether the court is functus officio in relation to the orders sought regarding Land Reference WEST BUNYORE/EBUSIKHALE/2209.
- 2 Whether the application falls within the purview of section 99 of the Civil Procedure Act (2010).
- 3 Whether the preliminary objection raised by the 1st interested party has merit.
Ratio Decidendi
The court found that the preliminary objection raised by the 1st interested party lacked merit. The applicant, as the 2nd interested party, was properly enjoined in the proceedings, and the issues raised did not render the court functus officio. The application did not fall within the narrow scope of section 99 of the Civil Procedure Act, which is limited to correcting clerical or arithmetical errors. The court determined that the preliminary objection did not raise a pure point of law capable of disposing of the matter at this stage. Consequently, the preliminary objection was overruled, allowing the substantive application to proceed.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled.
- The matter shall proceed for determination on its merits.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC JR CASE NO. 219 OF 2016
PARESH NARANDASH SEDANI............................................PLAINTIFF
VERSUS
THE LAND REGISTRAR, VIHIGA
THE RESIDENT MAGISTRATE, VIHIGA...................RESPONDENTS
SAMSON ANGOLO TIMOTHY OSIRU......1ST INTERESTED PARTY
CHARLES SIGU OTIENO............................2ND INTERESTED PARTY
RULING
The 1st interested party opposed the 2nd interested party’s Notice of Motion dated 24th July, 2018 on the grounds inter alia that the court is functus officio.That the court considered the parties submissions and found no basis for making orders relating to Land Reference WEST BUNYORE/EBUSIKHALE/2209. The application made does not fall within the purview of section 99 of the Civil Procedure Act (2010).The judgment delivered on 11th July, 2018 can only be the subject of an appeal.
That the 2nd interested party submitted that he will be prejudiced in that he will have to wait until the intended appeal is finalized and yet this application was earlier in time. There is no draft memorandum of appeal annexed to the 1st interested party’s application for the court to be able to determine the possibilities of success of the said appeal. That the suit land being ancestral as alleged by the applicant, does not remove or preclude it from the operation of the law governing judicial review. The application made does not fall within the purview of section 99 of the Civil Procedure Act (2010) and that there is an era on the face of the record as the applicant had been enjoined as an interested party and has adopted the submissions of the applicant in the judicial review application. There was an omission in the judgement and hence the court is not functus officio.
This court has considered the preliminary objection and the submissions therein. It is on record that the applicant was enjoined as the 2nd interested party on the 15th May 2018. I find that the preliminary objection has no merit and is overruled.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 9TH DAY OF OCTOBER 2018.
N.A. MATHEKA
JUDGE