[2009] KEHC 1797 (KLR)
The High Court held that it is bound by the decisions of the Machakos Land Disputes Tribunal and subordinate courts regarding the distribution of certain estate properties, as those decisions were not challenged or set aside through proper legal channels. The court refused to suo motu disregard or overturn those...
Source-derived case information.
- Citation
- [2009] KEHC 1797 (KLR)
- Parties
- Applicant: Daniel Mwalimu Mailu; Applicant: Monicah Mathei Mailu; Respondent: Simon Musili Mailu; Respondent: Rael Kavesu Mailu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 477 of 2006
- Procedural Posture
- Probate and Administration / Ruling on Identification of Distributable Estate Properties
- Outcome
- Partial determination; only certain properties available for distribution by the High Court.
- Legal Topics
- Succession of Estates, Distribution of Property, Binding Effect of Tribunal Decisions
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mwalimu Mailu
Applicant
Monicah Mathei Mailu
Applicant
Simon Musili Mailu
Respondent
Rael Kavesu Mailu
Respondent
Procedural Posture
Probate and Administration / Ruling on Identification of Distributable Estate Properties
Legal Issues
- 1 Whether the High Court is bound by decisions of the Machakos Land Disputes Tribunal and subordinate courts regarding the distribution of specific estate properties.
- 2 Which properties of the deceased's estate are available for distribution by the High Court.
Ratio Decidendi
The High Court held that it is bound by the decisions of the Machakos Land Disputes Tribunal and subordinate courts regarding the distribution of certain estate properties, as those decisions were not challenged or set aside through proper legal channels. The court refused to suo motu disregard or overturn those decisions, emphasizing the importance of upholding the sanctity of lawfully made tribunal and court decisions. Consequently, only those properties not subject to the tribunal and subordinate court decisions—specifically, plot No. 40 Yathui Market and title No. Yathui/Kyanguluni/690—are available for distribution by the High Court in this succession cause.
Court Disposition
Partial determination; only certain properties available for distribution by the High Court.
Orders
- The High Court will only order distribution of plot No. 40 Yathui Market and title No. Yathui/Kyanguluni/690.
- All other properties listed, save for plot No. 40 and 690, are to be distributed as per the decisions of the Machakos Land Disputes Tribunal and subordinate courts.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Probate & Administration 477 of 2006
IN THE MATTER OF THE ESTATE OF MAILU NTHUMBI (DECEASED)
DANIEL MWALIMU MAILU …….………. 1ST PETITIONER/ APPLICANT
MONICAH MATHEI MAILU ……..………. 2ND PETITIONER/APPLICANT
VERSUS
SIMON MUSILI MAILU ……................… 1ST RESPONDENT/OBJECTOR
RAEL KAVESU MAILU ……………….. 2ND RESPONDENT/OBJECTOR
RULING
1. I am merely asked to determine at this stage, what properties are available for distribution as regards the estate of Mailu Nthumbi (deceased). I note as follows:-
i. the properties that the deceased left undistributed are;
a. Wamunyu/Kyamatula/46
b. Wamunyu/Kyamatula/100
c. Wamunyu/Kyamatula/118
d. Wamunyu/Kyamatula/103
e. part of Wamunyu/Kyamatula/104
f. Yathui/Kyanguluni/690
g. plot No. 40 measuring 50 x 100 ft at Yathui Market.
ii. That there was a dispute regarding titles Nos. Wamunyu/Kyamatula/100, 103 and 104 in Machakos Land Disputes Tribunal Case No.83/2006 and the Tribunal determined on 16/5/2007 that the two plots be shared equally between the deceased’s two wives viz Kavesu and Mathei Mailu. In Machakos Court CM’s Court Case No. 89/2007 filed pursuant to the Tribunal’s decision, the decree refers to parcels Nos. 46 and 118 aforesaid as the land parcels to be shared equally between the deceased’s wives. In Machakos CM’S Court Case No. 87/2007, parcels Nos.100 and 104 aforesaid were also ordered to be divided equally between the deceased’s wives.
2. The question before me is whether, those decisions are binding on this court or not?
3. I should begin by stating that title No. Wamunyu/Kyanguluni/690 and Plot No.40 Yathui Market are readily available for distribution by this court as there is no consensus on that fact. Further, it is my simple view that the proceedings before the Machakos Land Disputes Tribunal were undertaken under Section 8 of the Land Disputes Tribunals Act. This court’s powers under Section 9 of that Act are limited to hearing appeals on issues of law from decisions rendered by a Provincial Appeals Committee. Of course, again this court has powers under Order LIII of the Civil Procedure Rules to interrogate the proceedings of the Tribunal if it is properly moved to do so.
4. Whatever my views about the legality or otherwise of the Tribunal’s proceedings, can this court suo motu determine that they should not be upheld? I refuse to accept that proposition. Our legal system is one where decisions of quasi-judicial Tribunals must be properly placed before the High Court and by known legal channels for scrutiny. The Petitioners did not move to stop the proceedings and have not moved to challenge its decision. In the event, the decision that the properties listed above save plots Nos.40 and 690 be shared equally between the deceased’s two houses must be upheld. That way the sanctity of decisions lawfully handed down can be protected and upheld.
5. In the event, this court can and should only venture to order distribution of the following properties;
a. plot No. 40 Yathui Market
b. title No. Yathui/Kyanguluni/690.
6. Orders accordingly.
Dated and delivered at Machakos this 26thday of August2009.
ISAAC LENAOLA
JUDGE
In presence of: Mrs Nzei for Petitioner
Mr Sila for Objector
ISAAC LENAOLA
JUDGE