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ELCDismissedNot stated in excerpt (Environment and Land Court suit, Machakos)· [2021] KEELC 1315 (KLR)

Sarphine Ole Nteka v Lendeki Ole Sokoyioni [2021] KEELC 1315 (KLR)

Environment and Land Court
25 October 2021
COCHRISTINE OCHIENG
1,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to order an official investigation into land ownership, ruling the Land Register already provides the land's history.

What this practically means

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Executive summary

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This was a ruling on the Defendant's Notice of Motion dated 17th February 2020, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 28 Rule 7 of the Civil Procedure Rules. The Defendant, registered owner of LR Kajiado/Ol Choro Onyore/282, sought a commission directing the Director, Land Adjudication/District Land Adjudication Officer, Kajiado to investigate and report on the historical and present ownership of the suit land, arguing the officer was best placed to ascertain the Plaintiff's claim of beneficial interest and customary trust arising from an alleged 1982 subdivision. The Plaintiff opposed, contending the issues were the gist of the main suit, that a similar 2019 report existed, and that the prayer for liberty to appeal was meant to delay the suit given a pending Notice of Appeal. The court framed a single issue: whether the commission should issue. Relying on Order 28 Rule 7(a) and associating itself with Bernard Mwangi Nderitu v Ndiara Enterprises Limited, the court held the Defendant had not demonstrated that the Land Adjudication Officer was unavailable or had declined to provide documents; the Land Register under the repealed Registered Land Act sufficed to show the land's history; the application was premature as parties had not complied with Order 11 directions issued on 30th October 2019; and ownership issues were matters for trial, where the Defendant could summon the officer as a witness. The court found the application designed to delay the suit, dismissed it with costs to the Plaintiff.

Key legal issues

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Whether a commission should issue under Order 28 Rule 7 of the Civil Procedure Rules to investigate the historical and present ownership of the suit land

Holding

The application was dismissed; the Defendant failed to show the Land Adjudication Officer was unavailable or had declined to provide records, and the Land Register under the repealed Registered Land Act suffices to show the land's history.

Reasoning

The court associated itself with Bernard Mwangi Nderitu v Ndiara Enterprises, holding that where a legal procedure for authenticating a title exists, a commission should not issue. Parties had been directed to comply with Order 11 on 30th October 2019 and the Defendant had not shown compliance, making the application premature. Issues of ownership and customary trust are matters for trial. The Defendant could summon the Land Adjudication Officer as a witness instead. The court found the application was filed to delay the suit.

p. 2

Legal principles established

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  • A commission under Order 28 Rule 7(a) may issue to any person to investigate and report on any matter in dispute in a suit, whether or not it is substantially the whole matter in dispute
  • Where a clear legal procedure exists for authenticating a title (such as an official search and the Land Register), a commission to investigate ownership will not issue

Court orders

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  1. 1.The Defendant's Notice of Motion application dated 17th February, 2020 is dismissed/disallowed
  2. 2.Costs awarded to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 28 Rule 7; Order 11
  • Land Adjudication ActSection 23
  • Constitution of KenyaArticle 159(2)
  • Environment and Land Court ActSection 3(1)
  • Registered Land Act (repealed)Not specified

Cases cited (12)

  • Ecobank Kenya Limited V Attain Enterprises Limited & Another
    (2014) eKLR
  • Joseph Ndungu Kagiri V Republic
    Criminal Appeal 69 of 2012 (2016) eKLR
  • Njeri Kuru V Gitau Kuru
    (2004) eKLR
  • Titus Kiragu V Jacksom Mugo Mathai
    (2015) eKLR
  • Lawrence Kinyua Mwai V Nyariginu Farmers Company Limited & Another
    (2016) eKLR
  • Republic V Stephen Mutwiri Ngae & Another
    (2018) eKLR
  • Deynes Muriithi & 4 Others V Law Society of Kenya & Another
    (2016) eKLR
  • Lucy Wangui Gachara V Minudi Okemba Lore
    (2015) eKLR
  • Oksana Investment Supplies Ltd V Alice Wanjiru Wamwea
    (2019) eKLR
  • Mpaka Road Development Limited V Kana
    (2004) 1EA 124
  • Marangu Rucha & Another V St. Mary’s Mission Hospital Nairobi
    (2015) eKLR
  • Bernard Mwangi Nderitu & 5 Others V Ndiara Enterprises Limited
    [2012] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 28 Rule 7 of the Civil Procedure Rules

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, "Sarphine Ole Nteka v Lendeki Ole Sokoyioni [2021] KEELC 1315 (KLR)", Case Analysis (2021). Not stated in excerpt (Environment and Land Court suit, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1315/eng@2021-10-25

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