Githinji v Koi & 3 others

2. 3. The application is supported by the sworn adavit of the ex parte applicant dated 19/7/2024. The grounds upon which the application has been brought are as follows: a. On 20/9/2007 One Jambo Fondo Gona (now deceased) was adjudicated owner of the suit land also referred to herein as Kadzonzo/ Madzimbani /176; b. The 2nd respondent never led an objection thereto within 60 days as required. c. The nal adjudication register was issued on 14/8/2013; d. By virtue of that nal register the suit land was not aected by appeals to the Minister; e. That without any appeal in place, a title could issue; f. On that basis the applicant purchased the suit land from Jambo Fondo Gona vide a written agreement dated 16/2/2011; g. Title was issued in the two names of the applicant and Jambo in 2016; h. However unknown to the applicant the 2nd respondent had allowed out of the statutory time, an objection with the land adjudication ocer in November 2011 after the purchase of the land; i. That the adjudication ocer ought to have dismissed the belated objection led four years later; j. The objection was dismissed; k. The 2nd respondent appealed; l. The appeal was heard in 2018; m. The appeal found that the 2nd respondent was the legal owner of the suit land and was issued with a title deed; n. That the Land Adjudication Ocer lacked jurisdiction after rst title was issued for the land and therefore he abused his power, acted unfairly and illegally; and his decision is for certiorari and even though he dismissed the objection the subsequent appeal was invalid ab initio; the 1st and 2nd respondent’s enforcement of the decision of the Minister is thus unjust and illegal. o. No court order cancelled the applicant’s title dated 16/5/2018; p. The 2nd respondent has now subdivided the suit land for disposal and the applicant has been denied the right to develop it; q. The applicant has been acquitted of criminal cases in connection with the suit land. A notice of preliminary objection dated 27/9/2024 was led by the 2nd respondent. In it he lays down the following grounds: a. That the issues canvassed in support of the application are Res Judicata Malindi ELC Misc. Civil Case No 10 Of 2019; b. That the application oends the provisions of order 53 rule 3 CPR; c. That the application oends the provisions of section 9(3) of the law reform act in that the statutory period of 6 months provided for has been exceeded before the ling of the application; https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14162/eng@2024-12-10 2

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d. That the application is tainted with procedural impropriety. Submissions. Respondent’s submissions on the preliminary objection 4. The applicant led submissions dated 14/10/2024 while the 2nd respondent led submissions dated 27th September 2024. I have considered the led submissions. 5. Citing Heritage Insurance Co Ltd Vs Patrick Kasina Kisilu 2015 eKLR, and Mburu Kinyua Vs Gichini Tuti; 1978 KLR 69, he urged that the present suit is res judicata Malindi miscellaneous Civil Case No 10 of 2019 and ELC Petition No 34 Of 2019 as well as Kaloleni PMELC E006 of 2024 and that Section 7 CPA bars these proceedings; citing Section 9 of the Law Reform Act and Order 53 Rule 2 CPR, Wilson Osolo V John Ochola & Another 1996 EKLR, Chabari V District Land Adjudication Oicer Meru South Maara District & 3 Others KEELC 1128 (KLR), he further urged that applications for leave to seek orders of certiorari must be led within 6 months of the decision in question and going by the date of decision impugned in this case the applicant is 6 years late and no prayer for extension of time has been included in the motion. He submitted that the application ought to be dismissed with costs. Applicant’s Submissions on the preliminary objection. 6. The applicant submits that the preliminary objection does not raise a pure point of law but calls for ascertainment of facts outside this case; that he had led a petition which was dismissed and a subordinate court case which was struck out; that the issues herein have not been heard by a competent court and that they are not res judicata; that Article 50(1) entitles the applicant to be heard in a fair and public hearing; that the substantive law in Section 7 of the Limitation Of Actions Act overrides the provisions of Order 53 Rule 3 CPR; 7. I have considered the preliminary objection and the response thereto. Preliminary objection properly so called must of the nature described in the Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 which dened it as follows: “ So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 8. In the same case it was stated as follows: “ A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion…” 9. It is clear that matters of fact would have to be excluded if they are disputed. Only matters that have been agreed as arising out of the pleadings and which are, if argued as a preliminary objection, can dispose of the entire suit. Matters regarding whether the case is res judicata or not require this court go outside of the pleadings in this case to examine other decisions some of which this court has not been availed, not even by the respondent objector who has not led any replying adavit in the matter. I https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14162/eng@2024-12-10 3

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decline to nd this limb of the preliminary objection to be proper and in accordance with the Mukisa case (supra) and it is for dismissal. 10. The second issue is whether the failure to le these proceedings within 6 months of the decision in question is fatal. I note that the application has been brought under the provisions of Sections 23 -29 of the Land Adjudication Act, as well as Articles 40 and 47 of the Constitution. This means the judicial review application before this court is not brought under the law reform act but under the constitution. The remedies therein sought must amount to constitutional remedies whether described as certiorari or mandamus in the manner the tradition al judicial review remedies under the LRA are described. Notably no timelines are set out for the seeking of such remedies in the constitution. Consequently, I nd that this limb of the preliminary objection must also fail. 11. The upshot of the foregoing is that the preliminary objection is not merited and it is hereby dismissed with costs. RULING DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 10TH DAY OF DECEMBER, 2024. MWANGI NJOROGE JUDGE, ELC, MALINDI https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14162/eng@2024-12-10 4

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