REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

ELC  CASE NO. 654 OF 2013

VINCENT NGARI NJOKA   …………………………………...…………….1^ST PLAINTIFF

  PATRICK NYAGA ………………………………………………………….. 2^ND PLAINTIFF

  JOSHUA NDWIGA ……………………..……………………………………3^RD PLAINTIFF

  CHARLES NJIRU ……………………………………………………………. 4^TH PLAINTIFF

   JACKSON NYAGA …………………………………………………………. 5^TH PLAINTIFF

   PETER IRERI …………………………………………….…………………… 6^TH PLAINTIFF

    DANSON KIURA ……………………………………………..……………… 7^TH PLAINTIFF

VERSUS

NYAGA MACUKIA …………………………………………………………. 1^ST DEFENDANT

CYRUS KITHUA NYAGA …………………………………….…………….2^ND DEFENDANT

JUDGMENT

By their plaint filed herein on 15^th August 2013, the plaintiffs sought the following remedy against the defendants:-

1. A declaration that sub-division of land parcel number 135 Kasavari Adjudication section of Mbeere South District was illegal and fraudulent and any subsequent sub-divisions into parcel No. 284, 640, 648, 645, 646, 642, 647, 283, 641 and 644 in Kasavari Adjudication section of Mbeere South District and registration of land parcel No. 135 in the name of Nyaga Macukia are null and void
2. Costs of the suit
3. Any other relief this Honourable Court may deem fit to grant

It is the plaintiff’s case that all material times they were the ancestral owners of the said parcels of land (hereinafter the suit land) but the 2^nd defendant, by virtue of his position as an employee of the Survey Department fraudulently caused the said suit land to be registered in the names of the 1^st defendant.

The 2^nd defendant who is son of the 1^st defendant (now deceased) filed a defence in which he denied the plaintiffs claims that they own the suit land adding that the said land is infact the property of his KAMUTURI clan of which the 1^st defendant was among the elders.  He added that this case was subject of objection proceedings in case No. 9 of 1975 in which the plaintiffs lost and an appeal to the Minister in appeal case No. 289 of 1979 was also dismissed in 1986.   He denied the allegation that he used his office to defraud the plaintiffs of their land.

The 1^st plaintiff gave evidence on behalf of the plaintiffs while the 2^nd defendant gave evidence for the defence.

In the course of their testimonies, it became apparent that the suit land is infact in an adjudication area.  When I put this question to the 1^st plaintiff, he responded as follows:-

“The area is still under adjudication and the 1^st defendant is not known”

When I put the same question to the 2^nd defendant, his response was as follows:-

                        “Yes but I don’t know”

From the pleadings herein and having heard the two witnesses for both parties, it is clear to me that the suit land is still under adjudication.   The plaint itself talks of

                        “--- Kasavari adjudication section of Mbeere South District”

Section 30 (1) of the Land Adjudication 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 on interest in land in an adjudication section until the adjudication register for that adjudication  section has become final in all respects under Section 29 (3) of this Act”  emphasis added.

Section 29 (3) of the same Act provides that once an appeal to the Minister has been determined, the Director of land shall alter the duplicate adjudication register and certify that the same is final and send details thereof to the Chief Land Registrar.    From the documents made available to me, there is nothing to show that the register for the adjudication section has become final in all respects as required under Section  30 (1) of the Land Adjudication Act.  All I can see are the adjudication proceedings and the order of the Special District Commissioner dated 25^th February 1086 dismissing the appeal.  In the circumstances, and bearing in mind the mandatory provisions of Section 30 (1) of the Land Adjudication Act, the plaintiff should not have instituted this suit and neither should the Court have entertained it.   Unfortunately, this came to light in the course of the trial.

 In the circumstances, the order that commences itself to make in this suit is to have it struck off with no order as to costs.

 It is so ordered..//.+4+

 B.N. OLAO

JUDGE

 19^TH DECEMBER, 2014

19/12/2014

Before

            B.N. Olao – Judge

            Mwangi – CC

            1^st, 2^nd , 4^th & 7^th  Plaintiffs – present

 Defendants – absent

COURT:         Judgment delivered this 19^th day of December, 2014 in open Court

1^st, 2^nd, 4^th & 7^th Plaintiffs present

No appearance by the Defendants

  B.N. OLAO

 JUDGE

  19^TH DECEMBER, 2014