[2005] KEHC 32 (KLR)
The court found that the Applicant's averments were uncontroverted and credible, establishing that the Respondent/Objector and third party had intermeddled with the estate by transferring the suit land during pending objection proceedings. The transfer was effected without lawful authority, and the registration of...
Source-derived case information.
- Citation
- [2005] KEHC 32 (KLR)
- Parties
- Applicant: Esau Nyapela Okanga; Respondent: Sella M. Okanga; Respondent: Dishon S. Oyoyi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 48 of 1996
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Injunction
- Outcome
- Application allowed. Injunction granted. Registration of third party cancelled. Costs to Applicant.
- Legal Topics
- Administration of Estates, Intermeddling With Estate, Injunctive Relief, Fraudulent Land Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esau Nyapela Okanga
Applicant
Sella M. Okanga
Respondent
Dishon S. Oyoyi
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the Respondent/Objector and third party intermeddled with the estate of the deceased by transferring the suit land during pending objection proceedings.
- 2 Whether the Applicant is entitled to an injunction restraining the Respondent/Objector and third party from dealing with the suit land.
- 3 Whether the registration of the third party as proprietor of the suit land should be cancelled.
Ratio Decidendi
The court found that the Applicant's averments were uncontroverted and credible, establishing that the Respondent/Objector and third party had intermeddled with the estate by transferring the suit land during pending objection proceedings. The transfer was effected without lawful authority, and the registration of the third party as proprietor was irregular. The court held that it had jurisdiction to grant the relief sought, including cancellation of the fraudulent registration and issuance of an injunction to preserve the estate pending determination of the objection proceedings. The court also directed investigation into possible criminal conduct regarding the transfer.
Court Disposition
Application allowed. Injunction granted. Registration of third party cancelled. Costs to Applicant.
Orders
- Registration of Dishon Oyoyi as proprietor of parcel E/BUNYORE/EBUSAMIA/498 is cancelled forthwith.
- Respondent/Objector and Dishon Oyoyi are restrained from interfering in any manner with land parcel E/BUNYORE/EBUSAMIA/498 or its title.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Succession Cause 48 of 1996
IN THE MATTER OF THE ESTATE OF FRANCIS OKANGA NYAPELA
A N D
ESAU NYAPELA OKANGA.......………………….… PETITIONER
V E R S U S
SELLA M. OKANGA
DISHON S. OYOYI………………OBJECTORS/RESPONDENTS
R U L I N G
The Petitioner, Esau Nyapela Okanga, made an application on 23. 9.04 by way of a chamber summons dated 20. 9.2004 seeking temporary injunction to restrain the Respondents, Sella M. Okanga and the third party, Dishon S. Oyoyi, from selling, transferring, cultivating, constructing, fencing or wasting or interfering with land parcel No.E.Bunyore/Ebusamia/498 pending the hearing and determination of the objection proceedings instituted by the Respondent.
The application was made on the grounds, inter alia, that the Respondent/Objector had secretly“given out the suit land to the third party and that the third party and the Respondent/Objector were intermeddling in the estate”. In the affidavit sworn on 20. 9.2004 by the Petitioner in support of the application, the latter averred that the third party, Dishon S. Oyoyi, was registered on 20. 6.2002 as the proprietor of the suit land when the objection proceedings were pending.
The Respondent/Objector who was served with the application for injunction did not appear for the hearing, nor did the third party who was also served and neither filed any replying affidavits to oppose the application.
I have perused the application and its supporting affidavit and have duly considered the submissions made by Mr. Kaburi, learned counsel for the Applicant. I am satisfied that in this cause the estate of the deceased, Francis Okang’a Nyapela, comprised four parcels of land namely;
E/BUNYORE/EBUSAMIA/701
E/BUNYORE/EBUSAMIA/987
E/BUNYORE/EBUSAMIA/2233
E/BUNYORE/EBUSAMIA/498
On 10. 4.96, a grant of Letters of Administration was made to the Petitioner which was confirmed on 29th May, 1996. Up to now, the objection proceedings filed by the Respondent/Objector have not been heard. During the pendency of the objection proceedings, land title No. E/BUNYORE/EBUSAMIA/498 was transferred to the said 3rd party, Dishon S. Oyoyi on 20. 6.2002. If the Petitioner as the holder of the Letters of Administration did not transfer it to the third party, who did? It is a criminal offence under the provisions of section 155 (1) of the Registered Land Act, Chapter 300 of the Laws of Kenya for any person to fraudulently procure any registration in any register.
As the application is not contested, and as the averments in the supporting affidavit of the Applicant/Petitioner are therefore not controverted, and as they appear to be true, I am satisfied that the Applicant/Petitioner has made out a case for the grant of the orders sought. Under section 47 of the Law of Succession Act (Cap.160), this court has jurisdiction to make such orders as may be expedient. Indeed the court has inherent power to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court (see Rule 73 of The Probate and Administration Rules).
Accordingly, I allow the application dated 20. 9.2004 and grant prayers 5 by ordering that, the registration of the Third Party, DISHON OYOYI as the proprietor of the parcel of land No. E/BUNYORE/EBUSAMIA/498 shall be cancelled forthwith. I also order that the Respondent/Objector and the said Dishon Oyoyi be and are hereby restrained from interfering in any manner whatsoever with the said land parcel E/BUNYORE/EBUSAMIA/498 or with the title thereof. The Respondent and the 3rd Party shall pay the costs of the application.
I direct that this Ruling and the application (dated 20/9/04) be furnished on the DCIO Kakamega who shall investigate possible commission of an offence under section 155 (1) of the Registered Land Act, Cap.300 with regard to the transfer of land title No. E/BUNYORE/EBUSAMIA/498 on 20. 6.2002.
Dated at Kakamega this 8th day of July 2005.
G. B. M. KARIUKI
J U D G E