MICHAEL HAMISI MWAYAYA WAMBUNGO V BIARUSI LIMITED [2004] KEHC 332 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 971 of 2003

MICHAEL HAMISI MWAYAYA WAMBUNGO…….......……..PLAINTIFF

-versus-

BIARUSI LIMITED………………………………………….DEFENDANT

R U L I N G

In the application brought by way of Chamber Summons dated and filed on the`` 4th February 2004 the Defendant seeks, upon the several grounds set forth therein, orders that the amended plaint filed in this suit be struck out with costs.  Such application is opposed on the grounds dated and filed on the 27th February  2004.

The Defendant contends that as it is the registered proprietor of the of the piece of parcel of land comprised in Title No. Nairobi/Block 91/339, the Defendant’s title thereto is absolute and indefeasible and is not liable to be challenged or defeated by virtue of the provisions of Sections 27 and 28 of the Registered Land Act (RLA) (Chapter 300 of the Laws of Kenya).

Accordingly, the Defendant argues that it has an absolute defence against the Plaintiff’s suit which is, in any event, misconceived as if the Plaintiff has any cause of action at all, then such cause of action can be only against the Commissioner of Lands and not against the Defendant against whom no reasonable cause of action has been disclosed.  Mr. Richard Kariuki for the Defendant in advancing these arguments referred me to the useful Ruling of RingeraJ. dated the 21st March 2002 in  Bernard Samuel Mosi                    -v- National Bank of Kenya Ltd. (Nairobi (Milimani Commercial Courts) HCCC Case No. 1863 of 2000) (unreported) adopting the legal position enunciated in Halsbury’s Laws of England 4th Edition Volume 36 at paragraph 73.

Mr. Kyalo Mobu for the Plaintiff submitted that the Defendant’s said title may be rectified as is expressly provided by Section 28 of the Registered Land Act either by the Registrar under Section 142 of that Act or by the Court under Section143 of the Act in circumstances of fraud or mistake (other than with regard to a first registration).  He argued that paragraphs 6 to11 inclusive of the amended Plaint filed on the 28th October 2003 aver to the Plaintiff’s allegations of fraud or mistake which may well affect the Defendant’s title.  In these circumstances, and relying on several decisions of the Courts, including Mitsubishi Corporation -v- Anthony Massawa (Civil Appeal No. 40 of 1992) (unreported), Mr. Kyalo urged me to dismiss the application.

Having considered the application in light of the submissions of both Counsels, I cannot say that this is a plain and obvious case meriting recourse in the summary manner sought .  Prime facie,there are triable issues, including whether or not the Defendant has an absolute defence to the Plaintiff’s suit, which I cannot determine at this stage without usurping the position of the trial Judge.

Accordingly, I would adopt the principles in this regard expounded in D. T. Dobie & Company (Kenya) Ltd. -v- Joseph Mbaria Muchina and Another (Civil Appeal No. 37 of 1978) (unreported) and dismiss the application with costs to the Plaintiff/Respondent.

Dated and delivered at Nairobi this 16th day of  April 2004.

P. Kihara Kariuki

Ag. Judge