JOHN SAKAJA NTUKUSOI VS Ministry of Lands and Physical Planning AND DISTRICT LAND REGISTRAR, TRANSMARA LAND ADJUDICATION AND SETTLEMENT OFFICER AND 5 Others

RULING

1. The 1^st to 4^th Interested Parties (hereinafter referred to as “the Applicants”) have filed a Preliminary Objection dated 7^th July 2023 (hereinafter referred to as “the present P.O.”) seeking for both the Notice of Motion Application and the Petition dated 02.12.2022 to be struck out on the following Grounds; -
2. This Court lacks jurisdiction as the Petition offends the mandatory provisions of Section 29 (1)(b) of the Land Adjudication Act, Cap 284 Laws of Kenya since the decision of the Minister is final.
3. That the Petitioner ought to have commenced Judicial Review proceedings if he was dissatisfied with the Minister’s decision in Appeal No. 139 of 1998.
4. The Petitioner’s Petition has failed the test of specificity established in the celebrated case of Anarita Karimi Versus- Republic (No.1) (1979) 1 KLR 154.
5. The suit is Res Judicata having been heard and determined by competent quasi-judicial institutions.
6. That the said Petition is frivolous, vexatious and an abuse of this Honourable Court’s process and hence ought to be struck out with costs.
7. The present P.O was duly served on the Respondents and parties directed to prepare and file their submissions on the same.
8. The Interested Parties/Applicants filed their submissions on the present P.O on the 12.01.2024 while the Petitioner/Respondent filed their submissions on the 02.11.2023.
9. The law and nature of a Preliminary Objection is one that is now settled in our Kenyan jurisdiction.
10. In the case of MUKHISA BISCUITS MANUFACTURING CO. LIMITED-VERSUS- WESTEND DISTRIBUTORS LIMITED (1969) EA,696, a Preliminary Objection was described as follows; -

“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.

1. In another case known as INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION-VERSUS- JANE CHEPERENGER & 2 OTHERS (2015) eKLR, the Supreme Court of Kenya pronounced itself as follows on the nature and scope of a Preliminary Objection; -

“… The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”

1. From the two authorities hereinabove, it is important for this Court to satisfy itself on whether the facts giving raise to the present P.O can be deemed to be correct or admitted without having to be subjected to judicial resolution to sustain it.
2. An overview of the facts relating to the present Petition can be summarised as follows; -
3. The Petitioner is alleging to be a resident of Nkararo Adjudication Section who was allocated Parcel No. 212 within the said Adjudication Section.
4. Upon be allocated Parcel No. 212 within Nkararo Adjudication Section, the 6^th Respondent filed an Objection in the year 1990 and assigned Objection no. 24 of 1990.
5. The said Objection No. 24 of 1990 was indeed heard on its merits and the Land Adjudication Officer dismissed the 6^th Respondent’s objection through a determination on the 08.08.1991 with leave to Appeal within 60 days from the said date.
6. The Petitioner states that the 6^th Respondent did not file any Appeal against the decision of the Land Adjudication Officer pronounced on the 08.08.1991 within the prescribed 60 days until in the year 1998 which was 7 years later.
7. The Petitioner is of the view that the Minister’s Appeal No. 139 of 1998 filed by the 6^th Respondent was time barred and denied the 1^st Respondent and the 2^nd Respondent from having any jurisdiction to hear and determine any issues raised by the 6^th Respondent.
8. However, despite lacking jurisdiction to hear and determine the Minister’s Appeal No.139 of 1998, the 1^st and 2^nd Respondents purported to undertake a hearing on the said Appeal and delivered the determination on the 30.03.20024 without notice to the Petitioner.
9. It is only in the year 2021 that the Petitioner learnt that the 1^st and 2^nd Respondents had in their determination pronounced on the 30.03.2004 directed that Parcel No. 212 within Nkararo Adjudication Section registered in the name of the Petitioner should be sub-divided equally between Petitioner and the 6^th Respondent.
10. The Petitioner is therefore of the view that first and foremost, the 1^st and 2^nd Defendants actions of admitting the 6^th Respondent’s Appeal out of time was unlawful and contrary to the provisions of the Land Adjudication Act, Cap 284.
11. Further to that, the actions of the 1^st and 2^nd Respondents in entertaining the Appeal No. 139 of 1998 and the subsequent decision pronounced on the 30.03.2004 was unconstitutional and interfered with his ownership rights over the property known as Parcel No. 212 within Nkararo Adjudication Section.
12. The 4^th Respondent opposed the facts pleaded in the Petition through a Replying Affidavit dated 26.04.2023 and stated as follows; -
13. At the beginning of the Adjudication process, the property known as Parcel No. 212 was demarcated and recorded in the name of JOHN SAKAJA NTUKOSOI in the year 1985.
14. Thereafter, the 6^th Respondent filed an Objection on the 07.12.1990 and was assigned Objection No. 24 of 1990.
15. Upon hearing and determination of the Objection No. 24 of 1990 by the 6^th Respondent, the Land Adjudication Officer dismissed the said objection on the 08.08.1991.
16. The 6^th Respondent being aggrieved by the Land Adjudication Officer decision pronounced on 08.08.1991 in the Objection No. 24 of 1990, filed an Appeal before the 1^st Respondent on the 19.08.1991.
17. Once the Appeal was received on the 19.08.1991, the same was forwarded to the 1^st Respondent for processing and it was only in the year 1998 that the Appeal was assigned Appeal No. 139 of 1998.
18. In essence therefore, the 4^th Respondent position was that the Minister’s Appeal No. 139 of 1998 was filed within the prescribed time within the Land Adjudication Act, Cap 284 and the 1^st and 2^nd Respondents had jurisdiction to hear and determine the same.
19. In addition to the foregoing, the 4^th Respondent states that the Petitioner duly participated in the Appeal No. 139 of 1998 and was subsequently aware of the determination pronounced on the 30.03.2004 way before the year 2021.
20. The 4^th Respondent produced a letter dated 06.07.2007 authored by the Petitioner to the Minister of Lands confirming that indeed a determination had been made in the Minister’s Appeal No. 139 of 1998 and he was not satisfied with the same.
21. In conclusion therefore, the 4^th Respondent is of the view that both the Appeal and the determination relating to the Minister’s Appeal No. 139 of 1998 was lawful and did not in any way infringe on any the Petitioner’s rights under the Kenyan Constitution, 2010.
22. The Interested Parties also opposed the present Petition by filing a Replying Affidavit dated 28.08.2023 and stated the following; -
23. First and foremost, the Interested Parties admitted to the facts pleaded by the 4^th Respondent in his Replying Affidavit dated 26.04.2023.
24. Further to that, the Interested Parties stated that the Petitioner herein had filed a previous suit known as KILGORIS PMCELC NO. 13 OF 2018 which was concluded by the Ruling pronounced in KILGORIS ELCA NO. 16 OF 2021.
25. According to the Ruling pronounced in KILGORIS ELCA NO.16 OF 2021, the Petitioner Plaint was struck out for lack of the mandatory consent under Section 30(1) of the Land Adjudication Act, Cap 284.
26. Similarly, the Honourable Court decided that the Adjudication of Nkararo Adjudication Section had not be finalised and therefore the Petitioner should explore the dispute resolution mechanisms within the said Land Adjudication Act, Cap 284.
27. The Interested Parties further raised that issue that once the 1^st and 2^nd Respondents heard and determined a lawful Appeal before them, then their decision and/or determination was final as envisaged under Section 29 (1) of the Land Adjudication Act, Cap 284.
28. Consequently therefore, the determination pronounced on the 30.03.2004 by the 2^nd Respondent on behalf of the 1^st Respondent contained in the Appeal No. 139 of 1998 was final and the present Petition was res-judicata.
29. The Interested Parties therefore sought to have the present Petition struck out forthwith.
30. Having captured all the facts as pleaded by the different parties to the present Petition, it is clear in the mind of this Honourable Court that there are no facts which have been admitted and/or can be assumed to be correct by this Honourable Court.
31. This is because while the Petitioner states that the Appeal No. 139 of 1998 was filed out of time, the 4^th Respondent disputes this fact by stating that it was filed within time.
32. Secondly, the Petitioner is stating that the 1^st and 2^nd Respondents did not have jurisdiction and/or authority to hear and determine the Appeal No. 139 of 1998, the 4^th Respondent states that the Appeal was filed within time and therefore the same was legally determined.
33. Thirdly, the Interested Parties are stating that this Petition is actually Res-Judicata to the determination made on the 30.03.2004 by the 1^st and 2^nd Respondents in Appeal No. 139 of 1998.
34. Further to that, the Interested Parties position is that the said determination made on the 30.03.1998 by the 1^st and 2^nd Respondents in the Appeal No. 139 of 1998 is final under Section 29 (1) of the Land Adjudication Act, Cap 284 and therefore the present Petition is an appeal of the same through the back door.
35. All these issues cannot be discussed by this Honourable Court without having to evaluate the evidence placed through the pleadings and making judicial declarations of facts and law.
36. This being the case, then the preliminary objection raised herein would require this Honourable Court to ascertain facts based on the evidence placed on record and exercise its judicial discretion contrary to the ingredients that guide preliminary objections.

CONCLUSION

1. In conclusion therefore, this Honourable Court makes the following Orders as appertains the Preliminary Objection dated 07.07.2023; -
2. THE PRELIMINARY OBJECTION DATED 07.07.2023 IS NOT MERITED & IS THEREFORE DISMISSED FORTHWITH.
3. THE INTERESTED PARTIES WILL BEAR THE COSTS OF THE SAID PRELIMINARY OBJECTION.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 12^TH MARCH 2023.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATE FOR THE APPLICANT: MR. KAMWARO (N/A)

ADVOCATE FOR THE RESPONDENT: ATTORNEY GENERAL FOR

         1^ST – 5^TH RESPONDENT

MR. MULISA FOR INTERESTED PARTY