Michael Maluti,John Matu Maluti, Benedict Mawio Maluti, Fedelis Kimote Maluti, Mutiso Maluti & Josephat Wambua Maluti v Julius Mbau Nzyuko, County Land Registrar & Makueni County Government [2019] KEELC 4526 (KLR)

REPUBLIC OF KENYA

IN THE  ENVIRONMENT AND LAND COURT

AT MAKEUNI

ELC NO. 69 OF  2018

MICHAEL  MALUTI..........................................1ST PLAINTIFF/APPLICANT

JOHN MATU MALUT........................................2ND  PLAINTIFF/APPLICANT

BENEDICT MAWIO  MALUTI..........................3RD PLAINTIFF/APPLICANT

FEDELIS KIMOTE MALUTI............................4TH PLAINTIFF/APPLICANT

MUTISO MALUTI...............................................5TH PLAINTIFF/APPLICANT

JOSEPHAT  WAMBUA MALUTI.....................6TH  PLAINTIFF/APPLICANT

VERSUS

JULIUS  MBAU NZYUKO..........................1ST  DEFENDANT/RESPONDENT

COUNTY LAND REGISTRAR ..................2ND DEFENDANT/RESPONDENT

MAKUENI COUNTY GOVERNMENT.....3RD DEFENDANT/RESPONDENT

RULING

1. What is before this court for ruling  is the 1st Defendant’s /Respondent’s preliminary objection/grounds  opposition dated 17th July, 2018 and filed in court on even date.

2. The 1st Defendant/Respondent has stated in his preliminary objection/grounds of opposition that;

1. That  the application  is brought  mala fides.

2. That the Applicant has not demonstrated that he referred   the matter to the Land Registrar Makueni to resolve the boundary  dispute and that  he failed to do so in accordance with Section 19 of the Land  Registration Act.

3. That it  is apparent that the dispute herein had been referred to the Land Registrar  for resolution and the same was scheduled for hearing on the 6th day of July, 2018, unfortunately the Applicant prematurely rushed  to the court  before the Registrar could resolve the dispute.

4. That  pursuant to the aforementioned in clause  3 above, the Applicant  mutilated the original summons which we annex herein.  The summons in the  application read a different date from he original summons.  The correct date ought to be 6/7/2018 and not 26th June, 2018.

5. That  the application is unmeritorious  as the threshold for the grant of the orders sought has not yet been met.

6. That  the application as filed is premature, a non-starter and an abuse of the court process.

3. In opposition to the preliminary objection the Plaintiffs/Applicants filed   a supplementary affidavit sworn at Makueni on the 23rd August, 2018 by Michael Maluti and filed in court on even date.

4. In paragraph 1, 2 and 7 of their   supplementary affidavit, Michael Maluti has deposed that he was served with  summons whose date of visitation  by the surveyor  who was to fix a boundary between themselves and the proprietor of parcel  number 94 Mbau was unclear.  That the Applicant does not  know the person who mutilated the summons in question.

5. The court directed that the application be disposed off by way of written submissions.

6. It was submitted on behalf of the 1st Defendant/Respondent  that the Respondents objection of the suit  and the application is explicit  in that;

i. The application and the entire suit  has been brought  against  the Respondent in bad faith for reasons that the Applicants land borders that of the Respondent, it was within the provisions  of the law that the Respondent cause the Registrar to issue the summons with a view  to determine the boundary dispute between the two parcels of land, notwithstanding this position the Applicants without awaiting for the decision of the  Registrar opted to come to court with a view to frustrate that exercise …. their sincerity in such a move is questionable hence  cannot be construed otherwise than mala fide.

ii. The application and the suit contravene the provisions of Section 18 and  19 of Land Registration Act  No. 3 of 2012.

This (SIC) sections  are clear  and explicit in their language as far as boundary disputes are concerned  in that ……… “ “No court shall entertain any action or other  boundaries of registered  land unless  the boundaries have been determined as provided in this section”……. of such the Registrar had not failed in performance and as such the filing of this   suit and the  subsequent application are pre-mature  and to say the least abuse of the court process.

7. The counsel  for the 1st Defendant/Respondent went on to submit  that the Plaintiffs/Applicants  who have  alluded  to having  been  served with the summons in the state they were  in did not  demonstrate  that they  made  efforts to ascertain  the date  and/or genuiness   of the  said summons from  the relevant  office. That  they instead opted  to rush to court contrary to the provisions of the law. The counsel added that the Applicants have contravened the law and as such, the provisions being mandatory, the entire suit and the application must fail for being  unmeritorious  and further for want of the requisite threshold of the orders sought to issue.

8. The counsel for the  Plaintiffs/Applicants submitted that when the Plaintiffs  received the summons, they were not aware  that a dispute  was reported to the Land Registrar and again the attendance date  was forged and/or obliterated.  The counsel added that  the particulars of the Plaintiffs’/Applicants’ land  were not  provided in the summons as is  required  under the law.  He  further  submitted that since there was a warning that failure to attend would  amount to a criminal offence and  the date of the hearing  indicated in the summons was  not clear, the Plaintiffs had no alternative  but  to file an application to protect their  rights and also to be supplied with the information lacking   in the said  summons . The counsel was of the view that the objection has no merits since firstly the plaint and the application are not made in bad faith, and secondly, there is a cause of action supported by the supreme and common law of this land which is the Constitution.

9. I have read the  preliminary objection/grounds  of opposition together with the supplementary affidavit as well as the  submissions that were filed by the counsel on record. I wish to point out  that other than the supporting  affidavit  sworn at Machakos on the 25th June, 2018 and filed in  court on even date together with Plaintiffs’/Applicants’  notice of motion application dated 25th June,  2018 as well  as the supplementary affidavit sworn on the 23rd August, 2018, the other two supplementary affidavits said to have been filed in court on the 27th  August, 2018 and 24th  September, 2018 are not in the court file. One would have expected elucidation on the same from the parties herein.

10. The Plaintiffs/Applicants are silent on these two supplementary affidavits in their submissions.  Be that  as it may, it is clear to me that  the Plaintiffs/Applicants appear to have been prompted to come to court by what they have termed as summons with unclear date  for  hearing.  That being the case, I am in agreement with the counsel for the  1st Defendant/Respondent that the Plaintiffs/Applicants  had an obligation to seek clarification with the relevant offices as to the genuiness or otherwise of the said  summons and more so, the date of visitation  by the Land Registrar. Section 18 of the Land Registrar Act No. 3 of 2012 provides as follows:-

18. (1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed   plan shall be deemed to indicate the  approximate  boundaries  and  the approximate situation only of the parcel.

(2) the court  shall not entertain any action or other proceedings relating to a dispute as to the boundaries  of registered land unless  the boundaries  have been determined in accordance with this  section.

(3) Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may in any proceedings concerning the parcel, receive such evidence as to its  boundaries and situation as may be necessary;

Provided that where all the boundaries are defined under section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act.

11. Further  Section 19 of the same Act provides as follows:-

19. (1) if the  Registrar  considers it desirable to indicate on a field plan approved  by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts  thereof, or if an interested person has made an application to the Registrar,  the  Registrar shall give notice to the owners and occupiers of the land  adjoining the boundaries in question of the intention to ascertain and fix the boundaries.

(2) The Registrar shall, after giving  all persons appearing  in the register an opportunity  of being heard, cause to be defined by survey, the precise position of the boundaries in question, file a plan  containing the necessary particulars and make a note in the register that the boundaries have been fixed, and  the plan  shall be deemed to accurately define the boundaries of the parcel.

(3) Where  the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries  fixed under this section.

12. Whereas the Plaintiffs/Applicants have pleaded in their plaint and their application that there has never been any boundary dispute between themselves and the Defendants/Respondents, it is clear to me that  they ought to have given the Land Registrar the chance to address  the boundary complaint raised  by the  1st Defendant/Respondent herein in line with Section 18 and 19 of the aforementioned Land Registration Act.  The Plaintiffs/Applicants jumped the gun by rushing to court instead of following the above mentioned provisions of the law. In the circumstances, I hold that the application has merits and I hereby proceed to uphold the same. I therefore, proceed to struck out the Plaintiffs’/Applicants’ suit and the application with costs to the 1st Defendant/Respondent. It is  so ordered.

SIGNED DATED AND DELIVERED AT MAKUENI  THIS  12TH DAY OF FEBRUARY, 2019

MBOGO  C.G,

JUDGE

IN THE PRESENCE OF

Mr. Munyasia   for the Defendant/Applicant

Ms Nzioka Court Assistant

Mr. Muumbi holdin g brief for Mr.  Kisongoa for the  Plaintiff/Respondent.

MBOGO C.G, JUDGE

12/2/2019