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Kourataake v Nakau [2023] KIHC 24; Civil Case 9 of 2021; Miscellaneous Application 25 of 2021 (6 September 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 9 OF 2021
MISCELLANEOUS APPLICATION 25 OF 2021

BETWEEN:
TOREKA KOURATAAKE FOR ISSUES OF MAURE MOTIUA
Applicants

AND:
KABOTAU NAKAU WITH SIBLINGS FOR ISSUES OF TEITIKAI TEIWAKI, TEKURABO TEIWAKI and TIMEA TEIWAKI
Respondents

Date of Judgment: 6 SEPTEMBER 2023

Appearances: Ms. Taaira Timeon for the Applicants
Ms. Batitea Tekanito for the Respondents

JUDGMENT

A brief fact of the case;

1. This is an application to extend time to apply for leave to issue an order of certiorari to quash the magistrate court’s decision in CN 154/06, delivered on 20 October 2009. The application for an extension of time was filed on 24 May 2021. Leave to apply for an order of certiorari was filed on the same date, which was out of time by eleven years and seven months.
   
2. When the case was mentioned on 25 July this year, both Counsels agreed for this Court to decide based on their written submissions already filed with the court registry last year.
   
3. This court adopts the 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;

4. The reason for the delay is the lack of knowledge of the decision of CN 154/06. The Applicants became aware of this decision sometime in 2010 but could not find the court minutes. They finally found it in April 2021 when they went to seek legal assistance.
   
5. The delay of 11 years and seven months is substantial but would not have been had the Applicants sought legal assistance at the earliest opportunity. It would show their sincerity and interest in this land if they did this.
   

Strength of the applicant’s case;

6. The application was delayed due to the applicant’s lack of knowledge of CN 154/06 judgment, as they were not invited to the hearing. The basis of the Applicants’ claim over the land is that it was their ancestor, Maure Motiua, who owned the land during the first registration. They allege natural justice had been breached when they were not afforded a chance to present their argument on their ownership.
   
7. The Respondents’ registration in CN 154/06 was also based on the ownership of their ancestor, Maure, a different Maure, over the said land Tebike 764 during the first registration. They acknowledge that they did not invite the Applicants to the hearing of CN 154/06 because they did not know that the Applicants have an interest in the land as they were not registered landowners in 2006 when they initiated CN 154/06. The Respondents invited other people whose names were registered in the land Tebike 764, and the Applicants’ names were not among those people.
   
8. I agree with the Respondents that the Applicants’ case is not apparent as their names were not in the register. They could not expect to be invited when they were not known. Therefore, natural justice is not relevant. It would have been applicable had their interest been known when CN 154/06 was heard. Although I understand the basis of their claim, this is not the proper cause of action.
   

Prejudice to the parties;

9. Counsel for the Applicants submit that there would be no prejudice if the extension of time is granted. Prejudice to the Applicants is not raised.
   
10. The Respondents submit, and I agree, that they would be prejudiced if the Applicants’ application is granted as during these 11 years, they have made developments on the land, including building permanent houses.
    

Summary;

11. For all the reasons stated above, the application for an extension of time is not granted.
    
12. Cost to the Respondent to be agreed or taxed.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice