Kaake v Temwakura [2023] KIHC 15; Civil Case 16B of 2016 (27 July 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 16B OF 2016

BETWEEN:
MOOTA KAAKE MTMM
Applicants

AND:
TUNGARU TEMWAKURA
Respondent

Date of Hearing: 29 JUNE 2023
Date of Judgment: 27 JULY 2023

Appearances: Ms. Taoing Taoaba for the Applicants
Mr. Raweita Beniata for the Respondent

JUDGMENT

A brief fact of the case;

1. This is an application for an extension of time to apply for leave to issue an order of certiorari to quash the magistrate court’s decision in CN 21 of 1980.
   
2. This court adopts the three principles set out in the case of Batee v Trustee for Jehova’s Witness Church [2006] KICA 17, Land Appeal 05 of 2005, to determine whether or not to grant the extension of time. Such principles will be discussed below in relation to the case at hand.
   

Acceptable reason for the delay;

3. The application for certiorari was filed on 21 November 2016, a substantial delay of almost 36 years after CN 21/1980. The reason for the delay is that the applicants were unaware of the decision of CN 21/1980 as they were not parties to the case and only found out in 2016 when the respondent summoned them to court for a boundary determination.
   
4. There were two cases between the respondent and the applicant’s father concerning the respondent’s registration over the disputed land. The first case was heard in 1978, in which the respondent received a quarter of the land from the applicant’s father as a gift for kindness. Two years later, in 1980, when the respondent saw that she had not been registered over the land, she took the applicant’s father to court in CN 21/1980 to inquire about her registration. In that second case, the applicant’s father gave her half of the land instead of a quarter. The applicants stated they did not know about these two registrations but did not want to dispute the first registration case in 1978 as only a quarter of the land was gifted to the respondent. Their problem with the second registration is that the respondent was registered over half of the land, and the remaining half is insufficient for them.
   
5. After the 1980 registration, the respondent lived on the land with the applicant and their father. Both parties lived on the land for 36 years when the applicant filed this case. Because of this, the respondent argued that the applicant could not claim not knowing about the 1980 registration case; their father lived with them and the respondent for a long time after the registration in 1980. They could have learned about this registration from their father.
   
6. I agree with the respondent. I find it hard to believe that the applicant knew nothing about the respondent’s registration over half of the land. The applicant deposed that he did not dispute the respondent’s living with them on their father’s land as maybe their father had agreed for her to live on the land. So, they all lived together on the same land, yet the applicants claimed they never knew from their father about the respondent’s title over the land.
   
7. The bold assertion of the applicants that they did not know about the registrations cannot simply displace the magnitude of the delay of more than 30 years; the delay is substantial and unreasonable.
   

Strength of the applicant’s case;

8. From the affidavits and submissions, the crux of the applicant’s case for certiorari is that although they were not aware of both registrations in 1978 and 1980, they only disputed the second registration done in 1980 as half of their father’s land was given to the respondent and the other half that remains is not enough for them.
9. The respondent submitted that the applicants were not invited to the registration cases in 1979 and 1980 because they were young then, yet they should have known from their father during his lifetime. She has certainty of title for more than 30 years before the applicant decides to disrupt it.
10. She further argued that the applicants could not complain that their half was insufficient as they had allowed people to live on their share and sold parts of their plots to others. This evidence was not challenged.
11. Based on the above, I believe the applicant has no substantial case. Also, the respondent has certainty of title since 1980, and the applicant’s delay of 30 years in filing their case is unreasonable.
    

Prejudice to the parties;

12. The prejudice to the respondent is evident as she had arranged and developed her affairs on the land, knowing she owned half the land.
13. The applicant also claimed he would be prejudiced as his building would be removed if his application for an extension of time was not allowed. This may be the case, however, knowing that his father had allowed the respondent to live on the land, he had taken the risk when he did not clarify their boundaries.
14. The bold assertion that he did not know about the respondent’s registration over half of the land is not enough to disrupt the respondent's certainty of more than 30 years of title.
    

Summary;

15. Overall, there is an overriding requirement not to allow the application for an extension of time.
16. Cost to the respondent to be agreed or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice