[2005] KEHC 1669 (KLR)
The court found that the plaintiff failed to demonstrate any cause of action against the defendants. The pleadings and evidence showed that the land in question was registered in the name of the 1st defendant following adjudication, and the alleged vendor, Cleophas Atieno Obara, was neither the registered owner nor...
Source-derived case information.
- Citation
- [2005] KEHC 1669 (KLR)
- Parties
- Plaintiff: Tom Boaz Okwedoro; Defendant: Barrack Yomba Omayo; Defendant: Amos Ambundo Omuyeka
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 287 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Dismissal of Suit
- Outcome
- suit struck out with costs to the defendants
- Legal Topics
- Striking Out of Suit, Cause of Action, Illegality of Contract, Land Control Board Consent, Trusts in Land, Privity of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Boaz Okwedoro
Plaintiff
Barrack Yomba Omayo
Defendant
Amos Ambundo Omuyeka
Defendant
Procedural Posture
Civil Case / Ruling on Application for Dismissal of Suit
Legal Issues
- 1 Whether the plaintiff's suit discloses a cause of action against the defendants.
- 2 Whether the alleged contract for sale of land is illegal for want of Land Control Board consent.
- 3 Whether the 1st defendant held the land in trust for the plaintiff or Cleophas Atieno Obara.
Ratio Decidendi
The court found that the plaintiff failed to demonstrate any cause of action against the defendants. The pleadings and evidence showed that the land in question was registered in the name of the 1st defendant following adjudication, and the alleged vendor, Cleophas Atieno Obara, was neither the registered owner nor shown to have any relationship with the defendants. There was no evidence of trust or privity of contract between the plaintiff and the defendants. Furthermore, the alleged sale was void for want of Land Control Board consent. The court concluded that the suit was plainly unsustainable and constituted an abuse of the court process, warranting its striking out with costs to the...
Court Disposition
suit struck out with costs to the defendants
Orders
- The plaintiff's suit is struck out.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
Civil Case 287 of 2002
TOM BOAZ OKWEDORO ………………………………….......……PLAINTIFF
VERSUS
1. BARRACK YOMBA OMAYO
2. AMOS AMBUNDO OMUYEKA………………...…..……DEFENDANTS
RULING
In their application dated 3rd February, 2003 Barrack Yomba Omayoand Amos Ambundo Omuyeka the defendants seek an order for a dismissal of suit filed by Tom Boaz Okwengo the plaintiff against them on the ground that it does not disclose a cause of action and is an abuse of the process of court for being based an alleged illegal contract. The application which was brought under Order V1 rule 13 of the Civil procedure Rules and section 6 of the Land Control Act and section 3A of Civil procedure Act is supported by an affidavit of Barrack Yomba Omayo the 1st defendant. The plaintiff opposes the application relying on a replying affidavit Mr. Julius Motanya his counsel who is in conduct of the case.
In his submission Mr. P. J. Otieno stated that the basis for the suit is an alleged illegal contract that there was no consent of Land Control Boards, and that the parcel of land No. East Gem/Jino/196 was alleged to have been brought from one Cleophas Otieno Obara on 1st February, 1990 for Kshs.20,000/- when the said Obara has never been the registered owner of the land; that the saidCleophas Otieno Obarais not a party to this suit; that there are no privity of contract between the plaintiff and the defendants and there is relationship between Cleophas Otieno Obara and the defendants.
In response Mr. Motanya submitted that the land was registered in the name of the 1st defendant as a trustee, that the vendor has never lived on the suit property, that there are triable issues.
In paragraph 3 of the amended plaint the plaintiff pleaded that on 1st February, 1990 he bought the suit land from ancestral owner one Cleophas Atieno Obara for Kshs.20,000/-. However the defendants denied the claim. The green card which was put in as exhibit indicates that the land was first registered in the name of the 1st defendant on 22nd August, 19790, after land adjudication process. I was also disclosed that the 1st defendant acquired the land from the late Omayo Opiyohis father who had acquired from Philip Obara Odwa in 1956. The said Cleophas Atieno Obaradoes not appear to have been the ancestor of the 1st defendant. There is also no evidence that the 1st defendant was a brother of the saidCleophas Atieno Obara so that the issue of whether the 1st defendant held part of the land in trust for him could be considered.
It was incumbent upon the plaintiff to demonstrate that there is even one triable issue between the parties to persuade me to permit the plaintiff to agitate it at the trial.
I find that this is a case where from the pleadings between the parties it is so plain and obvious that the plaintiff does not have any cause of action against the defendants.
Accordingly I strike it out with costs to the defendants.
Dated and delivered on 25th July, 2005
B. K. TANUI
J U D G E
In the presence of : Mr. Olel for Motanya for the Plaintiff.
B. K. TANUI
J U D G E