John Agwenge Chumbe v Andrew Matoka Okoko [2019] KEELC 2118 (KLR)

The court found that the questions set out for determination, especially (a) and (b), were aimed at ascertaining and collecting the estate of the late Alex Chumbe Omolo, and that the prayers concerned ownership, entitlement and occupation of land. As the Constitution and the Environment and Land Court Act confer jurisdiction over disputes concerning the environment and the use and occupation of, and title to land, the suit was before the correct forum. Distribution would fall to the Succession Court if ownership were determined in the Plaintiff's favour.

The Defendant relied on a history of prior disputes over the land since 1960, including Land Case No. 35 of 1982, Arbitration Board Case No. 21 of 1982, Tamu Magistrate's Court Misc. App. No. 4 of 1989 and Minister's Appeal No. 388 of 1996. The Plaintiff's position was that those disputes related to parcel 2415 and not parcel 2429, the subject of this suit. Because that issue cannot be determined without taking evidence, the court directed that it be addressed at trial.

The pleadings described the suit land as Land Parcel No. 2429 Wawidhi Adjudication Section, showing it lay in an adjudication section and was yet to be registered. No title deeds, green cards or official searches were annexed, so the submission that title deeds had been issued had no evidential foundation. In the absence of evidence of registration, the suit contravened Section 30 of the Land Adjudication Act for want of consent to sue from the Adjudication Officer, and this pure point of law was upheld.

The court applied the general rule in Section 27 of the Civil Procedure Act (Chapter 21) that costs follow the event. Having succeeded in having one of the three grounds of the preliminary objection upheld, the Defendant was entitled to costs of the application.