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ELCStruck Outnot stated on the face of the judgment· [2019] KEELC 4069 (KLR)

Peter Mbogo Ngathiko & 6 others v Mbara Mwarire & 2 others [2019] KEELC 4069 (KLR)

Environment and Land Court
28 March 2019
YAY.M. Angima
2,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land suit because the owners filed too early, before land adjudication was final and without required consent.

What this practically means

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Executive summary

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By a plaint dated 24th May 2016 and amended on 5th April 2017, the Plaintiffs, claiming to be the legitimate owners of Block No. 22 Gichiche Adjudication Section, sought cancellation and removal of Plot No. 2640 Gichiche Adjudication Section from Block 22 and an order allowing occupants to sub-divide and obtain individual titles. They alleged the 3rd Defendant had wrongfully excised Plot 2640 at the request of the 1st and 2nd Defendants. The 1st and 2nd Defendants denied the claim, asserted Plot 2640 was lawfully curved out, raised previous High Court and Court of Appeal proceedings, and challenged the court's jurisdiction for want of the Land Adjudication Officer's consent. The Plaintiffs then moved by notice of motion dated 4th October 2018 under Order 51(1) and Order 1(10) of the Civil Procedure Rules to join the Land Adjudication Officer, Mbeere South, as 4th Defendant and to re-issue an order of 4th January 2017. The Attorney General opposed, citing sections 26, 29 and 30 of the Land Adjudication Act. The court identified jurisdiction as the threshold issue. Applying section 30(1), which bars civil proceedings over land in an adjudication section without the LAO's written consent unless the register is final, and noting the 1st Plaintiff's affidavit admission that the matter 'is still at adjudication stage', the court held the conditions precedent unmet and the suit premature. It applied Lillian S and Samuel Kamau Macharia on jurisdiction, and followed Thomas Kinyori Hussein and Benjamin Okwaro Estika. The court struck out both the suit and the motion, with costs to the Defendants, and vacated all subsisting interim orders.

Key legal issues

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01

Whether the conditions precedent in section 30(1) of the Land Adjudication Act were satisfied

Holding

They were not: the Plaintiffs had no written consent of the LAO and the 1st Plaintiff's own affidavit confirmed the matter was still at adjudication stage, so the court had no jurisdiction

Reasoning

Section 30(1) bars institution and entertainment of civil proceedings over land in an adjudication section without the LAO's written consent unless the register is final. The Plaintiffs conceded through their supporting affidavit that the matter 'is still at adjudication stage'. Both alternatives therefore failed and the suit was premature.

p. 3
02

The consequence of absence of jurisdiction

Holding

The court must strike out the suit and the application rather than entertain them

Reasoning

Relying on Owners of Motor Vessel 'Lillian S' and Samuel Kamau Macharia, the court held that jurisdiction flows from the Constitution or legislation and cannot be assumed. Without jurisdiction the court cannot make one more step, so both the suit and the joinder application had to be struck out and interim orders vacated.

p. 3

Legal principles established

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  • Except with the written consent of the adjudication officer, no court may entertain civil proceedings concerning an interest in land in an adjudication section until the adjudication register has become final
  • Jurisdiction is everything; a court must down its tools once it finds it has no jurisdiction

Court orders

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  1. 1.The Plaintiffs' suit is struck out with costs to the Defendants
  2. 2.The Plaintiffs' notice of motion dated 4th October 2018 is struck out with costs to the Defendants
  3. 3.Any subsisting interim orders herein are vacated

Authorities

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Legislation

  • Civil Procedure RulesOrder 51(1); Order 1(10); Order 29 Rule 2
  • Civil Procedure Actsections 3 and 3A
  • Land Adjudication Actsections 26, 29(3), 30(1)

Cases cited (4)

  • Owners of Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another Vs Kenya Commercial Bank & 2 Others
    [2012] eKLR
  • Thomas Kinyori Hussein & 3 Others Vs Mokha Mghanga & 2 Others
    [2018] eKLR
  • Benjamin Okwaro Estika Vs Christopher Anthony Ouko & Another
    [2013] eKLR
Jurisdiction invoked
Sections 29(3) and 30(1) of the Land Adjudication Act (Cap 284) as conditions precedent to 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, "Peter Mbogo Ngathiko & 6 others v Mbara Mwarire & 2 others [2019] KEELC 4069 (KLR)", Case Analysis (2019). not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4069/eng@2019-03-28

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