Adika & 11 others v Maina & 5 others
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of a defective verifying affidavit
The undated verifying affidavit is defective but not fatal to the suit; striking out would be draconian
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.
Scope of the National Land Commission's jurisdiction vis-à-vis the Environment and Land Court
The NLC determination relied on was a mere recommendation over private land, outside its mandate; it cannot bar the suit
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.
Locus standi of the 1st plaintiff
The 1st plaintiff has locus standi since the suit property was initially registered in his name before subdivision and transfer
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.
Request for particulars and striking out
The request for particulars amounted to a fishing expedition; the plaintiff had complied with order 3 of the Civil Procedure Rules
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
#- 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
#- 1.The plaintiffs to file a properly executed verifying affidavit within 10 days after the ruling
- 2.The application dated January 14, 2022 disallowed with costs in the cause
- 3.The matter to be set down for hearing after compliance
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land (LR 15328/12)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.