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Kakiabwebwe v Terara [2025] KIHC 46; Civil Case 04693 of 2024 (31 July 2025)

IN THE HIGH COURT OF KIRIBATI

High Court Civil Case 2024-04693

Between: Kiaria Kakiabwebwe & Bwamon Kakiabwebwe
Applicants

AND: Taiman Terara for Issues of Orokai and Others Respondents

Date of hearing: 14, 16 and 19 May 2025
Date of judgment: 31 July 2025

Appearances: Ms. Eren Ruta Uriam for the Applicants

Ms. Taoing Taoaba for the Respondents

J U D G M E N T

Background

1. This proceeding concerns both the application for an extension of time and a substantive application to seek leave to apply for an order of certiorari against the decision of the magistrate court in 9/2011 issued on 11 April 2011. The substantive application and the application for an extension of time were lodged on 4 June 2024, and the amended applications for both were filed on 16 May 2025.
   
2. CN 9 of 2011 involves the registration of the lands of Ruatu Koubwere mtmm in the respondents’ names without the consent of the applicants.
   
3. The respondents opposed both the extension of time and the application for an order of certiorari. The 2006 Batee v Trustee for Jehovah’s Witness Kiribati Court of Appeal case clarifies that while the granting or refusal of the out-of-time application is at the discretion of the High Court, the overriding requirement is to do what is just or what the High Court considers, in all circumstances, to be fair and equitable.
   
4. When deciding whether to grant leave for an extension of time, the court must evaluate the magnitude of the delay, the prejudicial impact if leave is granted, and the strength of the case. These factors will be examined below when assessing the actual grounds of the application for leave for an order of certiorari.
   

Application Grounds

5. The main grounds are listed below;
   • - The breach of natural justice since the proceeding was done in the absence of the applicants.
   • - The magistrate court made an error of law and fact in determining that CN 9/2011 is a continuation of case BUT 01/2010, when both cases dealt with different legal matters.
   • - The magistrate court erred in law in determining that the applicants have lost their title to the lands pursuant to BUT 01/2010
   • - The magistrate court erred in law in making a decision that contradicts the earlier decisions of the same magistrate courts in CN 256/53, CN 68/56, CN 15/94, CN 7/2002, which established the rights of the applicants over these lands.
     

Submissions and Analysis

6. The applicants and respondents are descendants of Koubwere Karaiti. The applicants come from Koubwere Karaiti's first wife, Nei Teuneke Kataba. Kataba was the son of Koubwere and his first wife. The respondents come from Koubwere Karaiti's second wife, Nei Titao. Koubwere Karaiti had six children in total from both wives: Kataba, Titaake, Ruatu, Naunaia, Orokai, and King.
   
7. The lands in dispute were registered under the name of Ruatu Koubwere mtmm, who was the son of Koubwere and his second wife. This registration was carried out in CN 256/53 and CN 68/56.
   
8. The applicants based their legal claim to the disputed lands on the two decisions stating that the lands should be registered under Ruatu Koubwere and his siblings. Kataba Koubwere is one of Ruatu’s siblings.
   
9. The applicant’s affidavits detail the history of the dispute within this family. According to the applicant, 23 lands are registered under Ruatu Koubwere and siblings.
   
10. In case 04/04, the applicant’s mother and family from Koubwere's first wife took the respondents to court over the distribution of lands registered under Ruatu Koubwere and his siblings into six shares. This was granted.
    
11. The above decision was taken to the High Court on appeal by the respondents in HCLA 51 of 2004. Parties agreed that the issue was to determine all the lands registered under Ruatu Koubwere mtmm from Koubwere Karaiti, as those lands must be divided into six shares. Therefore, the matter was sent back to the magistrate court to make this determination.
    
12. In the case BUT 01/2010, the parties appeared before the magistrate court to determine which lands were inherited from Koubwere Karaiti. The magistrate court found that the lands registered under Ruatu Koubwere were not inherited from Koubwere Karaiti but from Karianako. Therefore, these lands should not be divided into six shares. The case was then appealed to the High Court in HCLA 32 of 2010, but the appeal was dismissed.
    
13. In CN 9/2011, the respondents divided the land into four shares following the decision in HCLA 32 of 2010, claiming that the case was a continuation of BUT 01/2010. The proceedings did not involve the applicants.
    
14. Unaware of the above decision in CN 9/2011, the applicants continued with their appeal against the decision of HCLA 32/2010 to the Court of Appeal in case number Land Appeal No. 6 of 2014. Their appeal was granted, and the High Court was ordered to rehear the case from BUT 01/2010. This was reheard before the High Court in HCLA 32/2010 on 11 May 2018, where the High Court dismissed the appeal.
    
15. The respondents’ case in CN 9/2011 was already finalized before the Court of Appeal's decisions in Land Appeal No.6 of 2014 and HCLA 32/2010 were finalized on 11 May 2018. The applicants argue that the HCLA 32/2010 decision issued on 11 May 2018 did not cancel their legal rights over the lands registered under Ruatu Koubwere.
    
16. The respondents’ opposition to the claim is based on the fact that the disputed lands concern only lands inherited from Koubwere Karaiti. The respondents argue that the lands registered under Ruatu Koubwere did not belong to Koubwere Karaiti but were inherited through the will of Kakianako. The proceedings of CN 256/53 and CN 68/56 dealt with this will.
    
17. The respondents further argue that the dispute began in CN 04/04 when the applicants divided the lands under Ruatu Koubwere into six portions. On appeal in HCLA 51/04, the parties agreed that the distribution in CN 04/04 be nullified and that the main issue to be decided was which lands were inherited from Koubwere Karaiti to be divided into six shares. The rehearing was conducted in BUT 01/2010, which determined that none of the lands registered under Ruatu Koubwere belonged to Koubwere Karaiti, as all lands were from Karianako. On appeal to the High Court in HCLA 32/2010, the applicants’ appeal was denied. The applicants then appealed to the Court of Appeal in Land Appeal 16/2014, where they won their case, and the High Court was ordered to rehear the matter. The High Court conducted the rehearing in HCLA 32/2010 but again dismissed the appeal in its decision dated 11 May 2018.
    
18. The respondents argued that the applicants had long known about the distribution case of CN 9/11 since 2012, when they began evicting them from the lands in CN 3/2012. However, the eviction was halted when they informed the magistrate court that CN 9/11 had been stayed in CN 74/2012. The respondents filed for an eviction order against the applicants again in 2021, but the applicants had already known about CN 9/11 since 2012, when the first eviction case was filed against them in CN 3/2012.
    
19. The delay in filing this application for certiorari to quash the decision of CN 9/2011 was because they were not aware of the case until they received an eviction order from the respondents, which was based on the decision of CN 9/2011. The delay is substantial, and the reasons provided are not reasonable. I have no problem accepting the respondent’s argument that the applicants had known about CN 9/11 since 2012, when the first eviction case of CN 3/2012 was brought against them.
    
20. The legal issue to resolve is whether the applicants have legal rights to the lands in dispute, which are registered under Ruatu Koubwere. I have considered both sides' arguments and agree with the respondents. CN 9/11 was a continuation of the parties' disputes over the lands registered under Ruatu Koubwere that initially began in CN 04/04. Reading the minutes of CN 04/04, it is clear that the applicant's mother applied for the distribution of the Koubwere lands, registered under Ruatu Koubwere, to be divided into six shares. The respondents opposed the distribution because they believed the lands under Ruatu Koubwere were not inherited from Koubwere Karaiti but from the will of Kairianako to Koubwere. The proceedings that followed focused on whether the lands in Ruatu Koubwere’s name were inherited from Koubwere Karaiti. This issue was addressed in HCLA 51 of 2004. It was finally determined in BUT 01/2010 that those lands were granted to Ruatu Koubwere by the will of Kairianako, not from Koubwere Karaiti. Several subsequent proceedings occurred in HCLA 32/10, Court of Appeal Land Appeal 16 of 2014, and back to HCLA 32/10, but the applicants’ appeal against BUT 01/2010 was dismissed in the judgment dated 11 May 2018.
    
21. I note the applicants’ point that the decision of HCLA 32/10, delivered on May 11, 2018, did not state that they no longer own the lands registered under Ruatu Koubwere’s name, whether those lands were inherited from Koubwere Karaiti or not. They may have a point here, but the issue during the distribution in CN 9/11 was that those lands were not inherited from Koubwere Karaiti, as argued throughout between the parties from CN 04/04. I accept that CN 9/11 was a continuation of the dispute that began in CN 04/04.
    
22. The applicants cited the case of Mangoniti v Mangoniti [2005] KICA 15; Land Appeal 07 2004 (8 August 2005) to support their argument that estate distribution does not only involve full siblings. I agree with the counsel for the respondents that this case is not relevant to the current matter, which concerns lands inherited by will, not from the estate of the parties' father.
    

Outcome

23. For the reasons stated above, the application for leave for an extension of time is not allowed.
    
24. The application for leave for an order of certiorari is also not allowed.
    
25. Consequently, the decision of the magistrate court in CN 9/11 remains binding.
    
26. Cost is awarded to the respondents which must be agreed by the parties or taxed.
    

Order Accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA

Chief Justice