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ELCDismissedNot stated in judgment· [2018] KEELC 2746 (KLR)

Jackson Koome v M’limongi M’ikuamba & 2 others [2018] KEELC 2746 (KLR)

Environment and Land Court
29 June 2018
MNMwangi Njoroge
4,691 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you're suing over land under adjudication in Kenya, you must file the Adjudication Officer's consent with your case papers or the entire suit is void.

What this practically means

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Executive summary

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This is an appeal to the Environment and Land Court (Mwangi Njoroge J) against a ruling of the Chief Magistrate's Court at Meru dated 30th October 2009 striking out, with no order as to costs, a plaint filed on 13th January 1997. The plaint sought declarations that the award and registration of Parcel No. 544 in the Uringu adjudication section was illegal, cancellation of the 1st respondent's registration, substitution of the appellant's name, mesne profits, general and special damages. The 1st respondent's preliminary objection invoked Section 8 of Cap 283 as read with Section 30 of Cap 284, arguing the suit was filed without the Adjudication Officer's consent. The appeal raised four issues: the stage at which consent must be filed; whether consent produced at the objection hearing could save the suit; whether the High Court's order for a hearing on the merits barred striking out; and whether a 12-year-late preliminary objection was proper. The court held that the mandatory provisions of both Acts require proof of consent at institution, failing which the suit is a nullity ab initio for want of jurisdiction; subsequent production of consent cannot cure the nullity; the High Court's order could not fetter the trial court's power over undecided preliminary objections; and preliminary objections may be raised at any stage while the suit is active. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Stage at which the Adjudication Officer's consent must be furnished under Section 8 of Cap 283 and Section 30 of Cap 284

Holding

The consent must be filed at the time the suit is instituted; failure makes the suit incompetent from inception

Reasoning

The court construed the mandatory language of Section 8(1) and (2) of Cap 283 and Section 30 of Cap 284 as an absolute bar. The burden of preventing prohibited proceedings is twofold: the litigant must desist and the court must decline institution without consent. Where a suit slips through, the burden shifts to the court to strike it out. Since court officials receiving initiating documents must be satisfied consent exists, proof must accompany filing.

p. 4
02

Effect of producing consent only at the hearing of the preliminary objection

Holding

Late production cannot save a suit that was a nullity from filing

Reasoning

Because nullity begins at inception for want of consent, the preliminary objection hearing is a forum for demonstrating or controverting nullity, not for curing it. The consent requirement is directed at the institution of proceedings, so it must form part of the filing. The appellant did not show the court had been consciously satisfied of prior consent when the suit was accepted.

p. 5
03

Whether the High Court's order that the matter be heard on its merits barred the trial court from striking out the plaint

Holding

It did not; the trial court retained power over preliminary legal objections the High Court had not decided

Reasoning

The appellant did not demonstrate that the High Court was aware of the want-of-consent issue when it directed a hearing on the merits, so res judicata could not arise. The High Court's direction could not be applied mechanically to override a jurisdictional objection that had not been before it.

p. 6
04

Whether a preliminary objection raised 12 years after suit was properly entertained

Holding

Yes; preliminary objections on points of law may be raised at any time while the suit is active

Reasoning

Relying on Koskei v Olenguruone Land Dispute Tribunal and Ali Oshan v Nyiha, the court held that while preliminary objections should preferably be raised early, they may be raised at any stage. Delay of 12 years did not bar the objection.

p. 6

Legal principles established

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  • Proof of the Adjudication Officer's consent must be furnished at the time of institution of the suit; failure renders the suit a nullity ab initio for want of jurisdiction
  • A consent produced later, at the hearing of a preliminary objection, cannot cure a suit filed without consent
  • A preliminary objection on a point of law may be raised at any stage of the proceedings

Court orders

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  1. 1.Dismissal of the appeal with costs to the respondent

Authorities

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Legislation

  • Land Consolidation Act (Cap 283)Section 8(1), 8(2), 8(3), 8(4), 8(5)
  • Land Adjudication Act (Cap 284)Section 30(1)-(6), section 29(3), section 5
  • Limitation Act (Cap 70)Sections 3 and 4
  • Civil Procedure RulesOrder 7 rule 6

Cases cited (10)

  • Mukisa Biscuits Manufacturing Company Limited Versus West End Distributors Limited
    1969 EA Page 1695
  • Registered Trustees Of The Catholic Archdiocese Of Nyeri And Another Versus Standard Limited And Others
    (2003) 1 EA Page 253
  • UU Net Kenya Ltd vs Telcom Kenya Ltd
    (2004) 1 EA 348
  • Oraro vs Mbaja
    (2005) 1 KLR 141
  • Owners of Motor Vessel "Lillian S" vs Caltex Oil (K) Ltd
    (1989) KLR 1
  • Andrew Mambo Muthee v Raphael Ngugi Mambo & another
    [2014] eKLR (Murang'a Miscellaneous Application No. 76 of 2012)
  • Iga vs Makerere University
    1973 EA 65
  • Republic v Chief Registrar of the Judiciary & 2 others Ex parte Riley Services Limited
    [2015] eKLR (Nairobi Judicial Review Miscellaneous Application No 2 Of 2015)
  • Beatrice Cherotich Koskei and Another –vs- Olenguruone Land Dispute Tribunal and 2 Others
    Misc Civil Appl 861 of 2007
  • Ali Oshan and Others –vs- Mrs. Catherine Kaswii Nyiha and Others
    Misc Civil Application 525 of 2002
On appeal from
Chief Magistrate's Court, Meru
Not stated (suit commenced by plaint dated 13/1/1997; ruling on preliminary objection delivered 30th October 2009)
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jackson Koome v M’limongi M’ikuamba & 2 others [2018] KEELC 2746 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2746/eng@2018-06-29

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