[2015] KEHC 5206 (KLR)
The court held that although the suit land is technically still under adjudication, the only step remaining is the issuance of the title deed, and there is no pending appeal. The plaintiff has acquired rights in the land that should be protected by law. The binding authority of the Court of Appeal in Ntika Munoru...
Source-derived case information.
- Citation
- [2015] KEHC 5206 (KLR)
- Parties
- Plaintiff: Samuel Kivuti Ciriba; Defendant: Joel Kithaka Maringa
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 219 of 2014
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Before Trial
- Outcome
- preliminary objection dismissed; suit to proceed to trial
- Legal Topics
- Land Adjudication, Preliminary Objection, Consent Requirement, Issuance of Title Deed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kivuti Ciriba
Plaintiff
Joel Kithaka Maringa
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Before Trial
Legal Issues
- 1 Whether the suit is properly before the court without the consent of the Land Adjudication Officer as required by the Land Adjudication Act.
- 2 Whether the completion of the adjudication process, save for issuance of title deed, allows the plaintiff to file suit without such consent.
Ratio Decidendi
The court held that although the suit land is technically still under adjudication, the only step remaining is the issuance of the title deed, and there is no pending appeal. The plaintiff has acquired rights in the land that should be protected by law. The binding authority of the Court of Appeal in Ntika Munoru and another v. Isaac Kaberia Etirika establishes that, in such circumstances, the filing of a suit is proper even before the title deed is issued. The requirement for consent from the Land Adjudication Officer does not apply where adjudication is complete and no appeal is pending. Dismissing the suit on this technicality would be unfair and contrary to the court's equitable...
Court Disposition
preliminary objection dismissed; suit to proceed to trial
Orders
- The preliminary objection is dismissed.
- The suit shall proceed to trial.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
E.L.C. NO 219 OF 2014
FORMERLY KERUGOYA 523 OF 2013
SAMUEL KIVUTI CIRIBA..................................................PLAINTIFF
VERSUS
JOEL KITHAKA MARINGA...........................................DEFENDANT
RULING
The defendant has raised a preliminary objection in respect of this suit. According to him, the suit is not properly before this court. The reason he gives is that the suit land is within the adjudication section within the meaning of the Land Adjudication Act.
In terms of the Land Adjudication Act, the plaintiff is required to have obtained the consent of the Land Adjudication Officer before the filing of this suit. It is for this reason that the defendant requires that it be dismissed for being in contravention of this mandatory provisions of the Land Adjudication Act.
The plaintiff has opposed the preliminary objection. According to him, the process of adjudication is completed. All that is remaining is the issuance of title deeds as there is no appeal pending before the Minister of Lands. He has cited section 29 of the Land Adjudication Act Cap 284 in support of his case. He has also cited the case of Moses Mbuvi Kithi v. Kalikanda Mwola (2008) eKLRin which the High Court (Lenaola, J) in applying the provisions of section 30 of the Land Adjudication Act.
Counsel for the plaintiff has also cited the Court of Appeal case of Ntika Munoru and another v. Isaac Kaberia Etirika at Nyeri Civil Appeal no. 278/2007. In that case, the Court of Appeal held that the appellant was entitled to seek relief in a court of law because all that was remaining in the suit land therein which was similarly under adjudication as in the instant case, was the issuance of a title deed.
In that case also there was no pending appeal. According to that court, the filing of a case in court by the appellant before the issuance of a title deed for the suit land that was within the adjudication section was proper. That case is on all fours that with the instant case. The authority of that case is binding on this court.
I have considered the submissions of both counsel in the light of the law applicable and I find that there is merit in the submissions of counsel for the plaintiff. I find that although the suit land is still under adjudication in the sense that only the issuance of a title deed is what is remaining, the plaintiff has acquired rights which should be protected by law.
This court is vested with both legal and equitable powers for purposes of protecting rights that are recognized by law.
In the circumstances, it has been shown that the plaintiff has acquired rights in the suit land which should be protected. It will therefore be unfair to drive him out of the seat of judgement on account of what I consider to be a technicality.
In the light of the foregoing matters I hereby dismiss the preliminary objection and direct that the suit proceeds to trial.
The plaintiff is awarded the costs of this application.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 22ndday of APRIL2015.
In the presence of Mr. Njoroge holding brief for the Mr. Andande and Mr. for the defendant
Court clerk Mr Muriithi
J.M. BWONWONGA
JUDGE