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ELCStruck OutNot stated in judgment· [2018] KEELC 1153 (KLR)

Mukai Mbole v Maluu Kitandi & 3 others [2018] KEELC 1153 (KLR)

Environment and Land Court
19 October 2018
OAO.A. Angote
562 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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If your land is still under adjudication in Kenya, you must get the adjudication officer's written consent before suing — otherwise your case will be struck out.

What this practically means

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Executive summary

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The Defendants brought an Amended Notice of Motion dated 9th October 2017 seeking to strike out the Plaintiff's suit on the grounds that the court lacked jurisdiction, that no consent was issued to the Plaintiff as required before filing suit, and that the suit land lay within the Kaluva Adjudication Section. The Plaintiff, who claimed sole proprietorship of the suit land and sought to restrain the Defendants from trespassing and destroying property, deponed that the property was registered in his favour but did not annex the register to show that interests in the parcel had crystallized. The Defendants' advocate submitted that Section 30(1) of the Land Adjudication Act prevents the institution of suits in court concerning interests in land in an adjudication section, that the land was still under adjudication when the suit was filed, and that the suit should be struck out for want of consent. The Plaintiff filed no submissions. The Defendants exhibited a letter dated 7th June 2017 from the Kitui Land Adjudication and Settlement Officer confirming that as at 25th November 2016 the Kaluva Adjudication Section was still under adjudication and that there were no records showing the Plaintiff was granted consent before filing suit. The court, applying Section 30 of the Act, held that consent of the Land Adjudication Officer is a prerequisite to filing suit over land still under adjudication. Finding no consent, the court allowed the application, struck out the Plaintiff's Plaint and awarded costs to the Defendants.

Key legal issues

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01

Whether the suit is barred by Section 30 of the Land Adjudication Act

Holding

The suit offends Section 30 because the Plaintiff failed to show he obtained the consent of the Land Adjudication Officer before commencing the proceedings, and the Kaluva Adjudication Section was still under adjudication when the suit was filed.

Reasoning

The court held that consent in writing of the adjudication officer is a prerequisite to instituting, and a condition of the court entertaining, suits over land in an adjudication section before the register becomes final. The Defendants exhibited a letter from the Kitui Land Adjudication and Settlement Officer confirming that as at 25th November 2016 the Kaluva Adjudication Section was still under adjudication and that no consent was granted to the Plaintiff. The Plaintiff did not annex the register to show the interests in parcel 2195 Kanduti/Katumbu had crystallized.

p. 2

Legal principles established

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  • No person may institute, and no court may entertain, civil proceedings concerning an interest in land in an Adjudication Section without the consent in writing of the adjudication officer until the adjudication register becomes final.

Court orders

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  1. 1.The Application dated 9th October, 2017 is allowed
  2. 2.The Plaintiff's Plaint is struck out with costs to the Defendants

Authorities

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Legislation

  • Land Adjudication ActSection 30(1) / Section 30; Section 29(3)
Jurisdiction invoked
Section 30 of the Land Adjudication Act (bar on entertaining civil proceedings concerning land in an Adjudication Section)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mukai Mbole v Maluu Kitandi & 3 others [2018] KEELC 1153 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1153/eng@2018-10-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.