Mukai Mbole v Maluu Kitandi, Musyoka Ndambuki, Kiamba Tivae & Ngala Kithuku [2018] KEELC 1153 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 207 OF 2016

MUKAI MBOLE.............................................................PLAINTIFF

VERSUS

MALUU KITANDI...............................................1ST DEFENDANT

MUSYOKA NDAMBUKI...................................2ND DEFENDANT

KIAMBA TIVAE.................................................3RD DEFENDANT

NGALA KITHUKU............................................4TH DEFENDANT

RULING

1. In the Amended Notice of Motion dated 9th October, 2017, the Defendants are seeking for an order striking out the suit.  The Application is premised on the grounds that this court does not have jurisdiction to hear the suit; that as per the records of the Land Adjudication Department, no consent was issued to the Plaintiff allowing him to file the suit and that the suit land is within the Kaluva Adjudication Section.

2.  In response, the Plaintiff deponed that the suit property is Kaluva/2195 which is registered in his favour; that the Defendants have been destroying property on the suit land and that he filed the suit to stop the Defendants from continuing with trespassing on the suit land.

3. The Defendants’ advocate submitted that Section 30(1) of the Land Adjudication Act prevents the institution of suits in court on matters concerning interest of land in an adjudication section; that the suit land was still under adjudication as at the time of filing the suit and that the suit should be struck out for want of consent.  The Plaintiff did not file submissions.

4.  In the Plaint dated 18th November, 2016, the Plaintiff averred that he is the sole proprietor of all that parcel of land known as Kanduti/Katumbu/2195 (the suit land);that the Defendants have taken a portion of the suit land and are claiming ownership of the same and that the Defendants have declined to vacate the land.

5. The Defendants filed a Defence in which they denied that this court has jurisdiction by virtue of the provisions of Section 30 of the Land Adjudication Act.  Although the Plaintiff has deponed that the suit land is registered in his name, he did not annex the register to show that the interests in parcel number 2195 Kanduti/Katumbu have crystallized.

6. The Defendants have exhibited on their Affidavit the letter dated 7th June, 2017 from the Kitui Land Adjudication and Settlement Officer. In the said letter, the Land Adjudication and Settlement Officer has stated that as at 25th November, 2016, Kaluva Adjudication Section was still under adjudication.  The letter further stated that there were no records to show that the Plaintiff was granted a consent before filing the suit.

7. It is trite that before filing a suit in respect to land which is still under adjudication, the consent of the Land Adjudication Officer is required. Section 30 of the Act provides as follows:

“Except with the consent in writing of the adjudication officer, no person shall institute and no court shall entertain, any civil proceedings concerning an interest in land in an Adjudication Section until the adjudication register for the Adjudication Section has become final in all respects under Section 29(3) of this Act.”

8. The adjudication register becomes final when the Director of Land Adjudication certifies the register and sends details to the Chief Land Registrar to prepare a register. Having failed to show that he obtained the consent of the Land Adjudication Officer before commencing the current proceedings, I find that the suit offends the provisions of Section 30 of the Land Adjudication Act.

9. In the circumstances, the Application dated 9th October, 2017 is allowed. The Plaintiff’s Plaint is therefore struck out with costs to the Defendants.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 19TH DAY OF OCTOBER, 2018.

O.A. ANGOTE

JUDGE