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ELCDismissedEnvironment & Land Case 315 of 2014· [2022] KEELC 13418 (KLR)

Adika & 11 others v Maina & 5 others

Environment and Land Court
7 October 2022
1,245 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to strike out a land suit over an undated affidavit, ruling the defect curable and that the National Land Commission cannot decide private land disputes.

What this practically means

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Executive summary

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The 5th and 6th defendants applied by notice dated January 14, 2022 to strike out the plaintiffs' suit over LR No 15328/12. They argued that ownership of the property had been determined by the National Land Commission in a decision published at Table 9 page 4263 Item 71 of Gazette Notice No 6863 of July 17, 2017, which was binding and unchallenged, rendering the suit res judicata under Section 7 of the Civil Procedure Act, vexatious and an abuse of process; they further contended that the 1st plaintiff lacked locus standi having subdivided and sold his interest, and that the plaintiffs' undated verifying affidavit contravened Order 4 rule 1(3) of the Civil Procedure Rules. The plaintiffs opposed, maintaining the amended plaint was properly filed. The court found the verifying affidavit defective for want of a date but held striking out would be draconian, ordering a properly executed affidavit within 10 days. The request for particulars was dismissed as a fishing expedition, the plaintiff having complied with Order 3. On locus standi, the court held the 1st plaintiff had standing as the property was first registered in his name. On the NLC determination, the court held the Commission's mandate over public land grants had lapsed in May 2017 and never extended to private land, and that the Gazette Notice item was merely a recommendation. The application was disallowed with costs in the cause and the matter set down for hearing after compliance.

Key legal issues

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01

Effect of a defective verifying affidavit

Holding

The undated verifying affidavit is defective but not fatal to the suit; striking out would be draconian

Reasoning

The court accepted the affidavit was undated and thus defective, but held that striking out the entire suit for such a curable defect would be excessively harsh. The proportionate remedy was an order that the plaintiffs file a properly executed verifying affidavit within 10 days.

p. 2
02

Scope of the National Land Commission's jurisdiction vis-à-vis the Environment and Land Court

Holding

The NLC determination relied on was a mere recommendation over private land, outside its mandate; it cannot bar the suit

Reasoning

The court held that the roles of the NLC and the courts are clearly delineated by law. The NLC's power to review grants of public land lapsed in May 2017 and never extended to private land interests, which belong to the ELC and subordinate courts. The Gazette Notice determination was in any event only a recommendation.

p. 3
03

Locus standi of the 1st plaintiff

Holding

The 1st plaintiff has locus standi since the suit property was initially registered in his name before subdivision and transfer

Reasoning

The court found that the property was first registered in the 1st plaintiff's name and that he subdivided it and caused registration in the names of the other defendants. On that basis he has locus standi to sue the defendants notwithstanding the disposal of his registered interest.

p. 3
04

Request for particulars and striking out

Holding

The request for particulars amounted to a fishing expedition; the plaintiff had complied with order 3 of the Civil Procedure Rules

Reasoning

Relying on Australian authorities on the function of pleadings and particulars, the court held that particulars serve to define issues and prevent surprise, but the plaintiff had already disclosed all relevant facts. The defendants' request sought matters beyond what was necessary and the suit should proceed to hearing.

Legal principles established

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  • An undated verifying affidavit is defective but the defect does not warrant striking out a suit; the remedy is to order proper execution
  • The National Land Commission's mandate to review grants of public land does not extend to interests over private land, which falls within the domain of the Environment and Land Court and subordinate courts
  • A person whose name was first on the register and who subdivided and transferred the land retains locus standi to sue over it

Court orders

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  1. 1.The plaintiffs to file a properly executed verifying affidavit within 10 days after the ruling
  2. 2.The application dated January 14, 2022 disallowed with costs in the cause
  3. 3.The matter to be set down for hearing after compliance

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Registration Actnot specified
  • Civil Procedure RulesOrder 4 rule 1(3)
  • Civil Procedure RulesOrder 2 rule 15(1)(b) and (e)
  • Civil Procedure RulesOrder 3

Cases cited (3)

  • Dare v Pulham
    (1982) 148 CLR 658

    Pleadings must furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it

  • Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd
    (1990) 169 CLR 279

    Function of pleadings is to state with sufficient clarity the case that must be met and define the issues

  • Bailey v Federal Commissioner of Taxation
    (1977) 136 CLR 214

    Particulars define the issues to be tried, prevent surprise and save expense

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land (LR 15328/12)

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, "Adika & 11 others v Maina & 5 others", Case Analysis (2022). Environment & Land Case 315 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13418/eng@2022-10-07

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