Mutisya Ngau v Peter Mutiso Mbithi & Commissioner of Lands [2017] KEHC 920 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL SUIT NO. 14 OF 2007

MUTISYA NGAU.....................................................PLAINTIFF

-VERSUS-

PETER MUTISO MBITHI..............................1ST DEFENDANT

COMMISSIONER OF LANDS..................... 2ND DEFENDANT

RULING

1) On  the 26th July, 2017 the plaintiff and the first defendant agreed by consent to address  the court on the issue of whether or not the latter is the registered owner of plot  number  957 as demonstrated by the pleadings and documents  already filed in court.  Both parties  agreed to do so by way of written  submission which the plaintiff   did on the  2nd  August, 2017.  The matter was fixed for mention on the 3rd October, 2017 with a view to confirming filing of sub-missions.

2) In his  submissions, the plaintiff’s  counsel cited the case of Mukisa  Biscuits Co. ltd -Vs- West End   Distributors Ltd  [1969] EA 696 which defines what  constitutes a preliminary objection and pointed out  that whether or not the  1st defendant  is rightfully sued is purely a question of fact which can only  be addressed  in the course  of trial.  The counsel  added  that the contention by the 1st defendant’s  counsel that  the pleadings and documents show that  the 1st  defendant is not the registered proprietor of plot number  957 does not necessary  qualify that question as a pure point of law.

3) On his  part the  first defendants’ counsel  submitted that from the pleadings by the parties herein and in particular the plaint, there is nothing  to show  what wrong  the  first defendant did in this matter and therefore there is no cause of action  that has been shown against the first defendant.

4) The first defendant’s counsel went on to submit that this  court  lacks jurisdiction to hear this matter because the consent that was given was illegal since the consent should have been given to the plaintiff after her objection was heard by the land adjudication officer. The counsel pointed out consent cannot be given when the register was declared final by the minister and title deeds issued.

5) Finally the counsel submitted that the office of the second defendant does not exist and any orders directed to it shall be in vain and it was upon  the plaintiff to amend her pleadings to include the proper party.

6) I have read the submissions, and my finding is as follows:- whereas I agree with the plaintiff’s counsel that the issue of whether or not the first defendant is the registered owner of plot number 957  is  a question of fact which can only be determined upon trial, the pleadings and more particularly the plaint does not disclose the cause of action, if any, that  the plaintiff  has against the first defendant.

7) The above  being the case, I am in agreement with the counsel for the first defendant  that to proceed with suit would  be a waste of time.

8) As regards non-existent  of the office of the second defendant ad therefore rendering  orders directed to it being in vain, section 7(1) of the Sixth Schedule of the Constitution  comes  into play but as earlier on observed, the plaint does not  disclose a cause of action. In the circumstances, my finding is that the preliminary objection has merits and I proceed to strike out the plaint with costs to the  first respondent.

Signed, Dated and Delivered this 29th day of November, 2017

MBOGO C.G

JUDGE

Ruling  read  aloud  and dated  in open court  in the presence of the  first defendant and in  the absence his  counsel  as well  as the  plaintiff  and  Mr. Kwemboi  court

assistant.

MBOGO C.G

JUDGE