[2007] KEHC 911 (KLR)
The court held that Section 30(1) of the Land Adjudication Act clearly bars the institution and entertainment of civil proceedings concerning land in an adjudication section without the written consent of the adjudication officer. The letter relied upon by the Plaintiff was not such consent, as it merely requested...
Source-derived case information.
- Citation
- [2007] KEHC 911 (KLR)
- Parties
- Plaintiff: Stanley Lezen Mliwa; Defendant: Leonard Kapala Makangalu; Defendant: Dorcas Makangalu; Defendant: Jezereal Nyange
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 9 of 2007
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- Suit struck out as incompetent.
- Legal Topics
- Land Adjudication, Jurisdictional Bar, Consent Requirement, Adjudication Process, Statutory Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Lezen Mliwa
Plaintiff
Leonard Kapala Makangalu
Defendant
Dorcas Makangalu
Defendant
Jezereal Nyange
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the court can entertain a civil suit concerning land in an adjudication section without the written consent of the adjudication officer as required by Section 30(1) of the Land Adjudication Act.
- 2 Whether Section 60(1) of the Constitution overrides Section 30(1) of the Land Adjudication Act in conferring jurisdiction to the court.
Ratio Decidendi
The court held that Section 30(1) of the Land Adjudication Act clearly bars the institution and entertainment of civil proceedings concerning land in an adjudication section without the written consent of the adjudication officer. The letter relied upon by the Plaintiff was not such consent, as it merely requested maintenance of the status quo pending an appeal before the Minister and did not authorize the filing of a suit. The court rejected the argument that Section 60(1) of the Constitution overrides the statutory bar, finding no conflict between the two provisions. The statutory process must be respected to avoid undermining the adjudication process. Accordingly, the suit was found...
Court Disposition
Suit struck out as incompetent.
Orders
- The suit is struck out for want of jurisdiction under Section 30(1) of the Land Adjudication Act.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 9 of 2007
STANLEY LEZEN MLIWA ::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
LEONARD KAPALA MAKANGALU
DORCAS MAKANGALU
JEZEREAL NYANGE ::::::::::::::::::::::::::::::::: DEFENDANTS
*********************
RULING
Section 30(1) of the Land Adjudication Act Cap 284 of the Laws of Kenya is very clear:-
“Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under Section 29(3) of this Act.”
It is not in dispute that the piece of land which is the subject of this suit is in an adjudication section although the adjudication section itself is not specified and there is pending before the Minister an appeal arising from a determination of the Land Committee in that section.
It is clear from what is placed before me that the adjudication officer’s consent as required by that section has not been obtained. The adjudication officer’s letter dated 16th October 2006 which Mr. Gichana for the Plaintiff claims is the required consent is clearly not one. That letter is addressed to the area chief asking him to prevail upon the parties to maintain the status quo pending the determination of the appeal pending before the Minister. It does not authorize any party to file a suit in court.
I do not accept Mr. Gichana’s argument that by dint of Section 60(1) of the Constitution I should ignore Section 30(1) of the Land Adjudication Act and entertain this suit. In my view the two sections are not in conflict. Section 30(1) of the Land Adjudication Act does not oust the courts jurisdiction. All it does is to stop parties from rushing to court on any and every disagreement in the adjudication process until it is complete. If it were to be ignored, I do not think any adjudication process will be completed. Disagreements on even a minor issue like the boundary line will be taken to court and stall the adjudication process. That would be disastrous and definitely not in the public interest.
Besides this it is a common principle of our law that where the Constitution or an Act of Parliament makes provision for the resolution of any grievance that provision should not be circumvented. See Speaker of National Assembly –Vs- Karume [1990-94] EA 549, Kipkalia Kones –Vs- The Electoral Commission of Kenya & others, Civil Appeal No. 94 of 2005 (CA)andNarok County Council –Vs- Trans Mara County Council and Another, Civil Appeal No. 25 of 2000 (CA).
For these reasons this suit is incompetent and is hereby struck out.
As the point upon which this suit has been struck out was not taken by the Defendant in the replying affidavit I order that each party bears its own costs.
DATED and delivered this 6th day of December 2007.
D.K. MARAGA
JUDGE