[2020] KEELC 188 (KLR)
The court recognized the consent between the petitioners and the 1st and 2nd respondents, marking the petition as settled against those parties and adopting the consent as an order of the court. However, the court also acknowledged the preliminary objection raised by the 8th respondent, which challenged the court's...
Source-derived case information.
- Citation
- [2020] KEELC 188 (KLR)
- Parties
- Applicant: William Mutuura Kairibia; Applicant: Felix Gitonga Nthiga Mutuura; Respondent: Inspector General of Police; Respondent: Director of Public Prosecutions; Respondent: Senior Principal Magistrate, Marimanti; Respondent: The County Land Registrar Tharaka Nithi County; Respondent: The County Surveyor Tharaka Nithi County; Respondent: County Government of Tharaka Nithi; Respondent: The Director of Surveys; Respondent: Elijah Muthuri Muriungi; Respondent: District Land Adjudication and Settlement Officer
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- ? E002 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection and Adoption of Consent
- Outcome
- Partial settlement and directions for hearing of preliminary objection.
- Legal Topics
- Jurisdiction of Eland Court, Res Judicata, Statutory Consent Requirement, Exhaustion of Statutory Remedies, Withdrawal of Criminal Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Mutuura Kairibia
Applicant
Felix Gitonga Nthiga Mutuura
Applicant
Inspector General of Police
Respondent
Director of Public Prosecutions
Respondent
Senior Principal Magistrate, Marimanti
Respondent
The County Land Registrar Tharaka Nithi County
Respondent
The County Surveyor Tharaka Nithi County
Respondent
County Government of Tharaka Nithi
Respondent
The Director of Surveys
Respondent
Elijah Muthuri Muriungi
Respondent
District Land Adjudication and Settlement Officer
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection and Adoption of Consent
Legal Issues
- 1 Whether the court has jurisdiction to hear the petition in light of alleged res judicata.
- 2 Whether the petition is incompetent for lack of statutory consent under the Land Consolidation Act and Land Adjudication Act.
- 3 Whether the petitioners failed to exhaust statutory remedies before approaching the court.
Ratio Decidendi
The court recognized the consent between the petitioners and the 1st and 2nd respondents, marking the petition as settled against those parties and adopting the consent as an order of the court. However, the court also acknowledged the preliminary objection raised by the 8th respondent, which challenged the court's jurisdiction on grounds of res judicata, lack of statutory consent, and non-exhaustion of statutory remedies. The court directed that the preliminary objection be heard and determined first, with a timetable for the exchange of written submissions. Interim orders were extended pending the inter partes hearing of the application. The court did not make a final determination on...
Court Disposition
Partial settlement and directions for hearing of preliminary objection.
Orders
- The preliminary objection filed by the 8th respondent and dated 15th December, 2020 shall be heard first, with the 8th respondent filing and exchanging written submissions within 21 days and the other parties responding within 21 days thereafter.
- The consent between the petitioners and the 1st and 2nd respondents dated 16th December, 2020 is adopted as an order of the court.
Full Case Text
Judgment text and source record
61 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CONSTITUTION PETITION CASE NO. E002 OF 2020
IN THE MATTER OF MARIMANTI MAGISTRATES COURT CRIMINAL CASE NO. 540 OF 2020
AND
IN THE MATTER OF ARTICLES 2(1), 3(1), 10, 19, 20, 21, 22, 23, 25, 27,
48, 50, 157,165(6) AND 245 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF VIOLATION OF ARTICLES 50(2) ( C) AND 40 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE LAND ADJUDICATION ACT, CAP 284 LAWS OF KENYA
BETWEEN
WILLIAM MUTUURA KAIRIBIA...............................................................1ST PETITIONER
FELIX GITONGA NTHIGA MUTUURA....................................................2ND PETITIONER
VERSUS
INSPECTOR GENERAL OF POLICE.......................................................1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS.............................................2ND RESPONDENT
SENIOR PRINCIPAL MAGISTRATE, MARIMANTI.............................3RD RESPONDENT
THE COUNTY LAND REGISTRAR THARAKA NITHI COUNTY......4TH RESPONDENT
THE COUNTY SURVEYOR THARAKA NITHI COUNTY......................5TH RESPONDENT
COUNTY GOVERNMENT OF THARAKA NITHI.................................6TH RESPONDENT
THE DIRECTOR OF SURVEYS...............................................................7TH RESPONDENT
ELIJAH MUTHURI MURIUNGI...............................................................8TH RESPONDENT
DISTRICT LAND ADJUDICATION AND SETTLEMENT OFFICER...9TH RESPONDENT
RULING
1. On 16. 12. 2020, advocate Kabathi, for the petitioners told the court that the petitioners and the 1st and 2nd respondents had a consent which they wanted the court to adopt as its order. The consent reads as follows:
Consent
Mr. Kabathi for the 1st and 2nd petitioners
Mr. Momanyi for the 1st and 2nd respondents
By consent
That the petition be marked as settled as against the 1st and 2nd respondents on the following terms.
1. That the proceedings in Marimanti Criminal Case No. 540 of 2020 be withdrawn under section 87 (a) of the Criminal Procedure Code.
2. That the 1st and 2nd Respondents be removed from these proceedings.
3. There be no order as to costs.
Signed by Mr. Kabathi for the petitioners
Signed by Mr. Momanyi for the 1st and 2nd respondents
Dated at Chuka this 16th day of December, 2020
2. Mr. Atheru, the 8th respondents’ advocate told the court that he had filed a Notice of Preliminary objection. The Notice reads as follows:
NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that the 8th respondent shall on 16th December, 2020 or so soon thereafter when this suit shall come up for any hearing raise preliminary objection on points of law persuading this honourabe court to dismiss the entire suit with costs to him on the grounds that:-
1. The honourable court lacks jurisdiction to hear this case for being res judicata both Chuka High Court ELC Case No. 8 of 2018 (William Mutuura Kairiba –vs- Samuel Nkari, Samuel Kathiga & Daniel Mugao) and Chuka ELC Suit No. 13 of 2019 William Mutuura Kairiba – versus – Samuel Nkari, Samuel Kathiga, Daniel Mugao, Francis Ruteere & The County Government of Tharaka Nithi).
2. The honourable court lacks jurisdiction to hear this case for lack of the mandatory statutory consent to file this case by dint of section 8 of the Land Consolidation Act, Cap 283 and section 30 of the Land Adjudication Act, Cap 284 Laws of Kenya.
3. The plaintiff did not exhaust the remedies set out at sections 13, 14 and 26 of the Land Consolidation Act, Cap 283 and Section 26 and 29 of the Land Adjudication Act, Cap 284 Laws of Kenya.
4. The application dated 25. 11. 2020 is fatally defective.
DATED AT MERU THIS 15TH DAY OF DECEMBER, 2020
SIGNED…………………
FOR: THURANIRA ATHERU & CO.
ADVOCATES FOR THE 8TH RESPONDENT
3. Upon hearing the parties, the following orders are issued:
a)The Preliminary Objection filed by the 8th respondent and dated 15th December, 2020 be heard first with the proponent who is the 8th respondent filing and exchanging his written submissions within 21 days of today and the other parties doing so within 21 days after receipt of the 8th respondent’s submissions.
b)The consent between the petitioners and the 1st and 2nd respondents dated 16. 12. 2020 is adopted as an order of this court.
c.Interim orders extended pending interpartes hearing of the application.
d.Mention for directions on 1. 2.2021.
Delivered in open Court at Chuka this 16th day of December, 2020 in the presence of:
CA: Ndegwa
Kabathi for the petitioners
Momanyi for the 1st and 2nd respondents
Atheru for the 8th respondent
P. M. NJOROGE,
JUDGE.