Humphrey Irungu Macharia v Ngari Kiringa & 2 others [2020] KEELC 2072 (KLR)

The suit was filed on 9 November 2015 but served on the Attorney General only on 30 July 2019, about four years later. There was no record of when summons were extracted or collected, no affidavit of service before that date, and no application to extend the validity of summons under Order 5 Rule 2. Failure to collect and serve summons within thirty days causes the suit to abate.

The Minister's appellate power under Section 29 of the Land Adjudication Act is expressly conferred by statute and is final. No jurisdictional objection was raised before the Minister, delay does not oust jurisdiction where no time limit is prescribed, and the Plaintiff's title was irregularly issued during the pendency of the appeal since the Registrar was obliged to register a restriction under Section 28. All parties were heard; bias was not proved.

Although the subject matter of previous objection proceedings, the Minister's appeal and Embu CMCC No. 186 of 2015 was the same property, the matters in controversy in this declaratory suit were not conclusively determined in those proceedings. No evidence showed the Plaintiff was using court machinery for improper or ulterior purposes.

The Plaintiff failed to prove the Minister's decision null and void, so he could not be declared absolute owner; the injunction was overtaken by events as the deceased had been buried years earlier upon conclusion of the appeal.