[2013] KEELC 66 (KLR)
The court held that it could not grant the vesting and eviction orders sought by the applicant because there was a pending appeal before the Provincial Land Dispute Appeals Committee regarding the same subject matter. Additionally, the property had since been registered in the name of the 2nd respondent, who was not...
Source-derived case information.
- Citation
- [2013] KEELC 66 (KLR)
- Parties
- Applicant: Peter Kamau Mwaura; Respondent: Christine William Mwasaru; Respondent: William Mwasaru Mgendi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 3 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Vesting and Eviction Orders
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Vesting Orders, Eviction Orders, Land Registration, Tribunal Awards, Pending Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kamau Mwaura
Applicant
Christine William Mwasaru
Respondent
William Mwasaru Mgendi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Vesting and Eviction Orders
Legal Issues
- 1 Whether the court can issue vesting and eviction orders in favour of the applicant in light of a pending appeal against the tribunal award.
- 2 Whether the registration of the 2nd respondent as owner of the suit property affects the execution of the tribunal's judgment.
- 3 Whether the application is properly before the court or should be brought by way of a substantive suit.
Ratio Decidendi
The court held that it could not grant the vesting and eviction orders sought by the applicant because there was a pending appeal before the Provincial Land Dispute Appeals Committee regarding the same subject matter. Additionally, the property had since been registered in the name of the 2nd respondent, who was not a party to the original tribunal proceedings. The court found that the legality of the title and the applicant's entitlement to the orders could not be determined through the present application but required either the transfer of the pending appeal to the Environment and Land Court or the institution of a substantive suit. Accordingly, the application was dismissed.
Court Disposition
application dismissed
Orders
- The applicant's Notice of Motion dated 16th April 2013 is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
MISCELLENEOUS CIVIL APP. NO. 3 OF 2013
IN THE MATTER OF: AN APPLICATION FOR VESTING ORDERS B
PETER KAMAU MWAURA IN LAND REF:
GONGONI SETTLEMENT SCHEME/1989
MEASURING APPROX. 2. 54 HA
AND
IN THE MATTER OF: AN APPLICATIO BY PETER KAMAU MWAURA
FOR ORDERS FOR VACANT POSSESSION OF
THE LAND KNOWN AS GONGONI SETTLEMENT
SCHEME/1989 AND EVICTION ORDERS AGAINST
WILLIAM MWASARU MGENDI AND CHRISTINE
WILLIAM
AND
IN THE MATTER OF: THE LAND REGISTRATION ACT NO. 3 OF 2012
AND THE LAND ENVIRONMENT ACT NO. 26 OF
2012
PETER KAMAU MWAURA.................................................................APPLICANT
VERSUS
CHRISTINE WILLIAM MWASARU......................................1ST RESPONDENT
WILLIAM MWASARU MGENDI...........................................2ND RESPONDENT
R U L I N G
Before me is the Plaintiff's Application dated 16th April 2013 brought pursuant to the judgment of the Magarini Land Disputes Tribunal case number 13/7 of 2009
The Application seeks for the following reliefs.
THAT the Honourable Land Court be please to issue vesting orders in favour of the applicant vesting all rights, interest and privileges including registration of all that land known as Gongoni settlement scheme No. 1989 measuring approx. 2. 5 Ha now registered in the name of the 2nd Respondent at Kilifi Land Registry and the Deputy Registrar of the Land court be allowed to sign and execute transfer forms for the land in favour of the Applicant for the subsequent registration of the Applicant as the registered owner thereof by the land registrar at Kilifi Land Registry.
THAT the Honourable Court be pleased to issue eviction orders against the respondents or their agents and/or representatives of any one acting on their behalf and warrants for vacant possession be issued to the court bailiff to deliver vacant possession of the land known as Gongoni Settlement Scheme to the Applicant.
The OCPD Malindi Police Division and the OCS Malindi Police station be empowered to enforce the execution of orders No. 2 above.
According to the Applicant, he was adjudged the rightful owner of the land in dispute by the Judgment of Magarini Land Disputes Tribunal in case number 13/7 of 2009, that no appeal was filed against the judgment and that the tribunal judgment was final and ought to be executed in favour of the Applicant.
The Applicant further states that the Tribunal's award was adopted as a judgment of the court: that the 1st Respondent fraudulently caused the 2nd Respondent to be registered as the owner of the suit property on an attempt to defeat the judgment that was entered in favour of the Applicant.
The Respondents filed their Grounds of Opposition on 3rd May 2013 and stated that the registered owner of the subject land against whom the orders are sought was not a party in the Tribunal case and that there is a pending appeal in the Provincial Land Dispute Tribunal filed as number 41 of 2010 at Mombasa against the decision of the subject District Land Dispute Tribunal case which appeal is yet to be determined.
The Respondents finally stated that the Applicant's Application is not enabled by law; that it is an utter abuse of the process of the court.
The parties made their oral submissions on 24th July 2013 which I have considered.
I have perused the award of the Magarini Land Dispute Tribunal in land dispute case number 13/17 of 1990 between the Applicant herein and the 1st Respondent.
The Tribunal's award was in favour of the Applicant and the same was adopted by Chief Magistrate as an award of the court in Land Case Number 155 of 2010.
I have also perused the Memorandum of Appeal that was filed in the Provincial Land dispute Appeals Committee, Mombasa by the 1st Respondent in respect to the award of the Magarini Land Dispute Tribunal.
That Appeal has not been heard. In my view all the appeals in respect to the decisions of the Land Disputes Tribunal that are pending before the Provincial Land Dispute Appeals Committee should be forwarded to the Environment and Land Court for hearing and disposal.
In view of the pending appeal, and in view of the fact that the suit property has since been registered in the name of the 2nd Respondent, I find that this court cannot determine the legality or otherwise of the title by way of an Application.
The Applicant will have to transfer the pending appeal to this court or move this court by way of a substantive suit. In the circumstances, I dismiss the Applicant's Notice of Motion dated 16th April 2013.
Each party shall bear their own costs.
Dated and Delivered in Malindi this 27th day of September,2013.
O. A. Angote
Judge