Nawere v Tekitanga [2025] KIHC 59; Miscellaneous Application 42 of 2023 (4 September 2025)

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IN THE HIGH COURT OF KIRIBATI
LAND JURISDICTION

MISC. APP 42 OF 2023
HIGH COURT LAND APPEAL 13 OF 2023

BETWEEN: TAATAKE NAWERE
Appellant

AND: KAUIA TEKITANGA & OTHERS
Respondent

Date of Hearing: 3 June 2025
Date of Judgment: 4 September 2025

Appearances: Mr Banuera Berina for the Applicant
Mr Tabibiri Tentau for the Respondent

JUDGMENT

Background of the case

1. The applicant in this case is seeking to challenge the decision of the Magistrates' Court in Betlan 180/20 through certiorari. However, before proceeding, he must first obtain the court’s leave for an extension of time before applying for leave for certiorari.

2. In the case Betlan 180/20, the Betio Magistrates' Court granted an eviction order, and the applicant was evicted from the land Tetabo 815k/1 Betio, which was co-owned by the respondents Kauia Tekitanga, Iaontoa Taurerei, and their family.

Grounds for Seeking an Extension of Time

3. The main reason for seeking an extension of time is that the applicant planned to appeal as soon as the judgment against him was issued, but Kauia Tekitanga and other landowners decided not to proceed with the applicant’s eviction from their land. The applicant filed his appeal on May 25, 2023, which was three years after the eviction order was issued against him.
APPLICABLE LAW

4. In the Court of Appeal case of Batee v Trustee for Jehovah’s Witness Church [2006] KICA 17, three requirements are established for the court to follow when deciding whether to allow the extension of time. These are;
- The magnitude of the delay and the reasons for it,
- The prejudice suffered consequently, and
- The strength of the appellant’s case.

Delay and the reasons for it

5. The judgment for Betlan 180/20 was issued on May 25, 2020, and the applicant filed his appeal on May 23, 2023, which is nearly three years late after the judgment was delivered.

6. The applicant claimed that she intended to appeal as soon as the judgment against her was delivered, but the Respondent Kauia Tekitanga and other landowners decided not to pursue the Applicant’s eviction from their land. This was supported by the affidavit of Mataneai Naaro, one of the landowners of Tetabo 815k. He deposed that he and Kauia decided not to pursue the eviction and accepted that the plot given to the applicant and Beeni was meant for them to own. Mataneai Naaro also deposed that he does not want the applicant or her children to be evicted from their land, Tetabo 815k Betio.

7. The strength of the case is also another factor to consider. The Appellant argued that they have a strong case based on the grounds of appeal filed. The grounds of appeal are as follows;

The Magistrate erred in law in its interpretation of the decision in case number 4/78 as simply a licence at will. Allowing the appellant to live on the land subject matter of the decision in that case at the pleasure of the landowner or his successors in title in that
i) A license to occupy native land does not require approval by a Lands Court;
ii) A license to occupy native land does not require the approval of a landowner’s children
And as such the transaction in case number 4/78 was

1. A transfer of a portion of the landowner’s land to the Appellant by means of a gift to the Appellant or;
2. The recognition of the creation by the landowner of an encumbrance over his land allowing for the occupation of his land by the appellant.
   

8. The Appellant had been living on the land for over 40 years, and he claimed that in case number 4/78, the landowner of Tetabo 815k transferred a portion to him and his wife as a gift.

9. In response, Kauia Tekitanga's affidavit stated that he and his family supported the eviction of the appellant so that Iaontoa Taureirei could secure a space on the land to build a permanent house. This was also affirmed by Tiete Tokintebuaka and Iaontoa Taurerei, the other registered landowners of the disputed land, through their affidavits.

10. The respondents also claimed that the applicant has not been registered on the land to date but only resides on the land because they were given a license to occupy it from the landowner Kibakiba in case number 4/78.

Court’s Analysis

11. The three-year delay in appealing this case requires justification. As the applicant argues, the delay was not caused by him but by some landowners who supported him in not vacating the land. This is supported by the affidavit of Matanaeai Naaro. In the affidavit, Matanaeai Naaro states that he and Kauia decided not to pursue eviction against the applicant and also agreed that the plot given to Tatake and Beeni was intended for their ownership. He further deposes that they do not want the applicant or his children to be evicted from their land, and they also acknowledge that it was on their advice that the applicant did not file his appeal in time.

12. In response, the respondent Kauia stated that he and his family only supported the eviction of the applicant so that Iaontoa Taurerei could secure a place for his permanent residence on the land. However, he did not oppose what Mataneai Naaro stated regarding the reasons that caused the delay in the applicant filing his appeal on time.

13. We find that since the respondent did not oppose the applicant’s reason for his delay, his belief is that the landowners will not evict him because they told him they agreed that the plot given to Taatake and Beeni was meant for them to own. Based on their advice, the applicant did not file his appeal in time. We accept this as a reasonable explanation for the delay.

14. We also consider the strength of the appeal. Section 4(i) of the Native Lands Ordinance Cap 61 states that an owner’s order to dispose of his property during his lifetime may be permitted by the court if it complies with this Lands Code. Section 4(ii) also states that the court shall first inquire into the opinion of the other children or next of kin of the owner before approving such a distribution or gift.

15. We note a court proceeding held in CN 4/78 where the landowner Kibakiba registered the name of Taatake and his wife Beeni on the plot at Tetabo 815k. It was also mentioned in CN 4/78 that a consent letter from the landowner’s children that the court before approving the registration. We believe that this should also be considered to determine whether CN 4/78 is a registration on the land or only a permission granted in the Lands Court, which gives the applicant and his wife a license to occupy Tetabo 815k Betio.

16. The applicants also submitted that he will suffer prejudice because not all landowners wanted him to leave the land. Some landowners accepted him to live on the land, while the respondents are the ones who evicted him. He also argued that his ground of appeal discloses an arguable case that this Court may determine regarding the registration proceedings in CN 4/78.

17. The respondents, on the other hand, argued that Iaontoa Taurerei would be prejudiced if the extension of time is granted because he is one of the registered landowners and is currently seeking a place on Tetabo 815k Betio to build a permanent residence with his family.

18. The respondents, including Iaontoa Taurerei, will not be prejudiced if we grant an extension of time, as they are currently registered landowners on Tetabo 815k. However, the applicant will be prejudiced if we do not allow a leave for an extension of time, as we believe that the delay was not caused by him, and there is also an arguable case for this Court to determine based on the grounds of appeal filed, which was previously discussed.

19. By weighing the two positions, as stated above, we accept the applicant’s reason for his delay. We also accept that there is merit to the case and that the applicant would be prejudiced if leave is not granted for an extension of time.

Outcome

20. For the reasons stated above, the leave to apply for an extension of time is allowed.

21. Parties must go back to the PTC to fix the next hearing date.

Order accordingly

THE HON. TETIRO SEMILOTA MAATE MOANIBA
Chief Justice

ARIAN ARINTETAAKE TEAUAMA IOTEBA
Land Appeal Magistrate Land Appeal Magistrate