[1999] KEHC 97 (KLR)
The court held that the trial magistrate acted without jurisdiction in granting orders for the transfer and partition of land in the absence of a substantive suit. The proper procedure would have been for the respondent to file an Originating Summons, supported by adequate evidence such as maps and affidavits. The...
Source-derived case information.
- Citation
- [1999] KEHC 97 (KLR)
- Parties
- Appellant: Samuel Mwaura Tuba; Respondent: Raphael Karanja Tuba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 30 of 1990
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; magistrate's orders set aside; leave granted to file fresh proceedings; costs awarded to appellant
- Legal Topics
- Originating Summons Requirement, Partition of Land, Court Powers on Transfer Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mwaura Tuba
Appellant
Raphael Karanja Tuba
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate had jurisdiction to grant orders for transfer and partition of land in the absence of a substantive suit.
- 2 Whether the procedure adopted by the respondent in seeking the orders was proper under the law.
Ratio Decidendi
The court held that the trial magistrate acted without jurisdiction in granting orders for the transfer and partition of land in the absence of a substantive suit. The proper procedure would have been for the respondent to file an Originating Summons, supported by adequate evidence such as maps and affidavits. The scanty information provided was insufficient for the drastic orders made. Consequently, the appeal was allowed, the magistrate's orders set aside, and leave was granted for the parties to file fresh proceedings if they so wished.
Court Disposition
appeal allowed; magistrate's orders set aside; leave granted to file fresh proceedings; costs awarded to appellant
Orders
- The appeal is allowed.
- The orders of the trial magistrate are set aside.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO. 30 OF 1990 SAMUEL MWAURA TUBA ................................. APPLICANT VERSUS RAPHAEL KARANJA TUBA ......................... RESPONDENT JUDGMENT
The respondent filed a miscellaneous application in the Resident Magistrate court No.68 of 1992 at Kiambu. This was by way of a Notice of Motion / Chamber Summons to which he prayed for the following orders:-
“That this court be pleased to make an order and authorise its Executive Officer to sign all necessary documents to facilitate the transfer of Land Reference Ngenda/Nyamangara/1772 into our names as indicated in my affidavit herein.”
He prayed for costs. The Hon. learned magistrate then recorded on the 4th of December, 1992 what the applicant stared and what the respondent stated then proceeded to write a brief ruling that the executive officer to sign the necessary document order to partition the land in question.
This is a very drastic order to take and especially in the light of there being no suit before the trial magistrate. What the respondent applicant ought to have field was an Originating Summons.
The trial magistrate should have established thereafter from the affidavit and possible annexture that there was a map on record to show the exact area the sub-divisions ought to be effected.
The prayers could not be possibly granted by the very scanty information brought by the parties. I hereby allow this appeal and set the trial magistrates orders aside.
The parties if they wish may file fresh proceedings with the leave of this court which I hereby give. I award the costs of this appeal to the appellant.
Dated this 29th day of July, 1999 at Nairobi.
M.A. ANG’AWA
JUDGE