REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT CHUKA

CHUKA ELC CONSTITUTION PETITION CASE NO. E002 OF 2020

IN THE MATTER OF MARIMANTI MAGISTRATES COURT CRIMINAL CASE NO. 540 OF 2020

AND

IN THE MATTER OF ARTICLES 2(1), 3(1), 10, 19, 20, 21, 22, 23, 25, 27,

48, 50, 157, 165(6) AND 245 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF VIOLATION OF ARTICLES 50(2) ( C) AND 40 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE LAND ADJUDICATION ACT, CAP 284 LAWS OF KENYA

BETWEEN

WILLIAM MUTUURA KAIRIBIA...............................................................1^ST PETITIONER

FELIX GITONGA NTHIGA MUTUURA....................................................2^ND PETITIONER

VERSUS

INSPECTOR GENERAL OF POLICE.......................................................1^ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS.............................................2^ND RESPONDENT

SENIOR PRINCIPAL MAGISTRATE, MARIMANTI.............................3^RD RESPONDENT

THE COUNTY LAND REGISTRAR THARAKA NITHI COUNTY......4^TH RESPONDENT

   THE COUNTY SURVEYOR THARAKA NITHI COUNTY......................5^TH RESPONDENT

COUNTY GOVERNMENT OF THARAKA NITHI.................................6^TH RESPONDENT

THE DIRECTOR OF SURVEYS...............................................................7^TH RESPONDENT

ELIJAH MUTHURI MURIUNGI...............................................................8^TH RESPONDENT

  DISTRICT LAND ADJUDICATION AND SETTLEMENT OFFICER...9^TH RESPONDENT

RULING

1.  On 16.12.2020, advocate Kabathi, for the petitioners told the court that the petitioners and the 1^st and 2^nd respondents had a consent which they wanted the court to adopt as its order. The consent reads as follows:

Consent

Mr. Kabathi for the 1^st and 2^nd petitioners

Mr. Momanyi for the 1^st and 2^nd respondents

By consent

That the petition be marked as settled as against the 1^st and 2^nd respondents on the following terms.

1.  That the proceedings in Marimanti Criminal Case No. 540 of 2020 be withdrawn under section 87 (a) of the Criminal Procedure Code.

2.  That the 1^st and 2^nd Respondents be removed from these proceedings.

3.  There be no order as to costs.

Signed by Mr. Kabathi for the petitioners

Signed by Mr. Momanyi for the 1^st and 2^nd respondents

Dated at Chuka this 16^th day of December, 2020

2.  Mr. Atheru, the 8^th respondents’ advocate told the court that he had filed a Notice of Preliminary objection. The Notice reads as follows:

NOTICE OF PRELIMINARY OBJECTION

TAKE NOTICE that the 8^th respondent shall on 16^th December, 2020 or so soon thereafter when this suit shall come up for any hearing raise preliminary objection on points of law persuading this honourabe court to dismiss the entire suit with costs to him on the grounds that:-

1.  The honourable court lacks jurisdiction to hear this case for being res judicata both Chuka High Court ELC Case No. 8 of 2018 (William Mutuura Kairiba –vs- Samuel Nkari, Samuel Kathiga & Daniel Mugao) and Chuka ELC Suit No. 13 of 2019 William Mutuura Kairiba – versus – Samuel Nkari, Samuel Kathiga, Daniel Mugao, Francis Ruteere & The County Government of Tharaka Nithi).

2.  The honourable court lacks jurisdiction to hear this case for lack of the mandatory statutory consent to file this case by dint of section 8 of the Land Consolidation Act, Cap 283 and section 30 of the Land Adjudication Act, Cap 284 Laws of Kenya.

3.  The plaintiff did not exhaust the remedies set out at sections 13, 14 and 26 of the Land Consolidation Act, Cap 283 and Section 26 and 29 of the Land Adjudication Act, Cap 284 Laws of Kenya.

4.  The application dated 25.11.2020 is fatally defective.

DATED AT MERU THIS 15^TH DAY OF DECEMBER, 2020

SIGNED…………………

FOR: THURANIRA ATHERU & CO.

ADVOCATES FOR THE 8^TH RESPONDENT

3.  Upon hearing the parties, the following orders are issued:

a)The Preliminary Objection filed by the 8^th respondent and dated 15^th December, 2020 be heard first with the proponent who is the 8^th respondent filing and exchanging his written submissions within 21 days of today and the other parties doing so within 21 days after receipt of the 8^th respondent’s submissions.

b)The consent between the petitioners and the 1^st and 2^nd respondents dated 16.12.2020 is adopted as an order of this court.

c.Interim orders extended pending interpartes hearing of the application.

d.Mention for directions on 1.2.2021.

Delivered in open Court at Chuka this 16^th day of December, 2020 in the presence of:

CA: Ndegwa

Kabathi for the petitioners

Momanyi for the 1^st and 2^nd respondents

Atheru for the 8^th respondent

P. M. NJOROGE,

JUDGE.