[2021] KEHC 7450 (KLR)
The court found that, although its jurisdiction in land matters is limited by the Constitution, it retains the power to preserve the subject matter of succession proceedings pending appeal. Allowing any further transfer or subdivision of the suit land while the appeal is pending would render the appeal an academic...
Source-derived case information.
- Citation
- [2021] KEHC 7450 (KLR)
- Parties
- Appellant: Daniel Dishon Anyanzwa Oluchula; Respondent: Jackson Oyiengo Amere
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E002 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- Application for stay granted; inhibition order issued.
- Judges
- RE Aburili
- Legal Topics
- Succession Proceedings, Stay of Transactions, Land Inhibition, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Dishon Anyanzwa Oluchula
Appellant
Jackson Oyiengo Amere
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to grant orders inhibiting transactions on land subject to succession proceedings pending appeal.
- 2 Whether allowing transactions on the suit land during the pendency of the appeal would render the appeal nugatory.
- 3 Whether the appellant is entitled to an order of stay to preserve the subject matter of the appeal.
Ratio Decidendi
The court found that, although its jurisdiction in land matters is limited by the Constitution, it retains the power to preserve the subject matter of succession proceedings pending appeal. Allowing any further transfer or subdivision of the suit land while the appeal is pending would render the appeal an academic exercise. Therefore, the court exercised its discretion to grant an order prohibiting any transaction on land parcel No. North Gem/Got Regea/276, including registration of an inhibition by the Land Registrar, until the appeal is heard and determined. Directions were also given for the expeditious filing and service of the record of appeal and submissions.
Court Disposition
Application for stay granted; inhibition order issued.
Orders
- An order is issued prohibiting the transfer or further subdivision of land parcel No. North Gem/Got Regea/276 until the appeal is heard and determined.
- The Land Registrar, Siaya County, is directed to register an inhibition on the said title or any of its subdivisions prohibiting any transaction until determination of the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CIVIL APPEAL NO. E002 OF 2021
DANIEL DISHON ANYANZWA OLUCHULA ........ APPELLANT
VERSUS
JACKSON OYIENGO AMERE ............................RESPONDENT
RULING
1. I have considered the application dated 31st March 2021 filed by Mr. Ooro advocate for the appellant and the response by the respondent. I note that this is a succession matter and the subject matter is land. What the appellant seeks is stay of any transaction on the suit land parcel No. North Gem/Got Regea/276 subject of the succession proceedings and this appeal.
2. I acknowledge the fact that land in this country and Siaya County in [particular is an emotive matter and this can be deduced from the emotions that ran high in court from the Respondent during the hearing of the application subject of this Ruling. However, I am alive to the fact that this court’s jurisdiction as far as land matters are concerned is limited by law and the Constitution at Articles 162(2)(b) and 165(5)(b).
3. In addition, this court would not be determining matters of trusteeship or beneficial ownership to land other than as far as entitlement to benefit in succession proceedings is concerned.
4. That being the case, and as allowing any further transfer or subdivision of the land in question while this appeal is pending will render the appeal an academic exercise, I hereby exercise discretion and grant the prayers sought prohibiting the transfer of or further subdivision of land parcel No. North Gem/Got Regea/276 and directing the Land Registrar Siaya County to register an inhibition of the said Title or any of its subdivisions prohibiting any transaction on the same until this appeal is heard and determined, subject to directions that the appellant do file and serve a record of appeal together with written submissions to canvass the appeal herein within 14 days of today upon which the Respondent has 10 days to file and serve written submissions. Mention before the Deputy Registrar on 21. 5.2021 to confirm compliance and to place the file before the judge to fix a judgment date.
5. Costs in the cause.
6. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 26TH DAY OF APRIL, 2021
R.E. ABURILI
JUDGE
In the presence of
Mr. Ooro Advocate for the appellant
Respondent in person
Appellant present
CA: Modestar and Mboya