Elvin Leware Macager v Land Registrar Migori,Maurice Otema Kadii & Agricultural Finance Corporation [2018] KEELC 3726 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT MIGORI

MISC CIVIL APPLICATION NO. 4 OF 2017

ELVIN LEWARE MACAGER.............................................APPLICANT

VERSUS

LAND REGISTRAR, MIGORI.................................1ST RESPONDENT

MAURICE OTEMA KADII.....................................2ND RESPONDENT

AGRICULTURAL FINANCE CORPORATION....3RD  RESPONDENT

RULING

1. I have before me a Notice of Motion dated 28/2/2017 by the applicant represented by learned counsel, Mr. Nyauke.  The applicant is seeking against the respondents  the following orders :-

a. The suit filed by the applicant against the respondents being Mogori Civil Case No. 466 of 2014; Elvine Leware Macager Vs. the Land Registrar, Migori and 2 others in the Senior Principal Magistrate’s court be transferred therefrom to the Environment and Land court, Migori for hearing and disposal.

b. The order of injunction issued  by Hon. Nyaga on the 10th April, 2015 in Migori Case No. 466 of 2014: Elvine Leware Macager Vs. the Land Registrar, Migori and 2 others and duly registered against the suit property Suna East/Wasweta 1/921  on the 7th April, 2015 be maintained upon transfer of the case.

c. Leave be granted to the applicant to amend his plaint and the intended amended plaint annexed hereto be deemed as duly filed and served on the respondents in compliance with the rules of this Honourable court.

d. The costs of this application be provided for.

2. I have noted all the grounds on the face of the Notice of motion, among them, that the declaratory orders sought by the applicant in the suit can only be issued by this court.  Supporting  affidavit sworn on 27/2/2017 by the applicant and annexed documents, also anchor the Notice of motion,

3. Mr. Maboga for the 4th respondent has no objection to the Notice of Motion.

4. The claim appears to be on the rectification of the suit land register, among others.  It is a claim exclusively within the jurisdiction of this court as envisaged under Sections 2 and 80 of the Land Registration Act, 2012; See Wambugu –vs- Njuguna (1983) KLR 172

5. I find    the notice of motion unopposed and merited.

6. I allow it accordingly.

7. Pursuant to order 3 sought in the Notice of Motion, the applicant’s intended  amended plaint dated 24/2/2018, be deemed duly filed and be served on the respondents forthwith.

8. The respondents to amend, file and serve amended defence within the next 30 days from the date hereof.

9. The 1st and 2nd respondents be served accordingly.

10. Mention on 26/4/2018 for directions.

DELIVERED, SIGNED and DATEDin open court at MIGORI this 22nd  day of February 2018.

G. M. A. ONGONDO

JUDGE

In the presence of:

Mr. Nyauke  counsel for the Applicant present

Mr. Maboga  counsel for the 3rd respondent

Mr. Tom  -Court assistant

G. M. A.  ONGONDO

JUDGE