[2018] KEELC 1742 (KLR)
The court found that the land parcel L.R. No. Butsotso/Shikoti/1422 was not the subject of litigation in the referenced cases, and no judgment or tribunal award granted the applicant or her late mother rights over the land. The applicant sought orders on behalf of her late mother’s estate without being the...
Source-derived case information.
- Citation
- [2018] KEELC 1742 (KLR)
- Parties
- Applicant: Esther Omulalu Oluchinji; Respondent: Jeremiah Oluchinji; Respondent: Mathews Oluchinji
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 75 of 2017
- Procedural Posture
- Elc Appeal / Ruling on Post Judgment Application
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Land Transfer, Locus Standi, Execution of Judgment, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Esther Omulalu Oluchinji
Applicant
Jeremiah Oluchinji
Respondent
Mathews Oluchinji
Respondent
Procedural Posture
Elc Appeal / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the applicant is entitled to an order directing the Deputy Registrar to execute transfer instruments for L.R. No. Butsotso/Shikoti/1422 in her favour.
- 2 Whether the applicant has locus standi to seek orders on behalf of her late mother’s estate.
- 3 Whether the subject land was part of the litigation in previous suits and awards.
Ratio Decidendi
The court found that the land parcel L.R. No. Butsotso/Shikoti/1422 was not the subject of litigation in the referenced cases, and no judgment or tribunal award granted the applicant or her late mother rights over the land. The applicant sought orders on behalf of her late mother’s estate without being the administratrix, thus lacking locus standi. The court further noted that the tribunal proceedings were declared a nullity for want of jurisdiction. Consequently, the application was found to be without merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC APPEAL NO. 75 OF 2017
ESTHER OMULALU OLUCHINJI............. APPLICANT
VERSUS
JEREMIAH OLUCHINJI
MATHEWS OLUCHINJI ........................RESPONDENTS
RULING
The application is dated 4th May 2015 and seeks the following orders;
1. That this honourable court be pleased to direct the Deputy Registrar of this court to execute all relevant instruments necessary to effect the transfer of L.R. No. Butsotso/shikoti/1422 measuring 3. 6 ha awarded to the applicant vide the judgment herein.
2. That the cost of this application be provided for.
WHICH APPLICATION is based on the annexed affidavit of Elizabeth Okutoyi Makuba and upon the following general grounds that the judgment was passed in favour of the applicant awarding her L.R. No. Butsotso/Shikoti/1422. That the respondent herein fraudulently registered himself in the said land.That the respondent has restrained the applicant from using the said land which her late mother was using and contracted to Mumias Sugar Company. That the judgment issued herein will not be enforced unless the Deputy Registrar of this honourable court is directed to execute the necessary transfer instruments in favour of the applicant.
The respondent submitted that, the land parcel number N. Butsotso/shikoti/1422 was not a subject of litigation in both Kakamega CMCC No. 764 of 1999, it was not a subject of Kakamega HCCA 4 of 2004. That as far as they have never litigated on Butsotso/Shikoti/1422 and he is not the registered proprietor of the land. Annexed hereto and marked AM1 is a copy of the search certificate.That judgment in appeal No. 4 of 2004 never gave land to the applicant herein, the applicant has read more to the order than was actually granted.That the tribunal case No. 36 of 1999 never adjudicated on land parcel number BUTSOTSO/SHIKOTI/1422. That the tribunal did not give land parcel No. Butsotso/Shikoti/1422 to the applicant or her mother.That the orders sought by the applicant are done on behalf of the estate of her late mother. She doesn’t have power to pursue the orders as she is not the administratix of the estate of her mother.That the proceedings in the tribunal were held by the High Court to have been done without jurisdiction and were declared a nullity.
This court has considered the application and the submissions therein. I have perused the court file. I find that, the land parcel number N. Butsotso/Shikoti/1422 was not a subject of litigation in both Kakamega CMCC No. 764 of 1999, it was not a subject of Kakamega HCCA 4 of 2004. The judgement in Kakamega HCCA 4 of 2004 never awarded the plaintiff the land but ordered that the appellant pursues succession proceedings. Secondly, the orders sought by the applicant are done on behalf of the estate of her late mother. She does not have power to pursue the orders as she is not the administratix of the estate of her mother. She does not have any locus. I find that this application has no merit and I dismiss it with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 20TH DAY OF SEPTEMBER 2018.
N.A. MATHEKA
JUDGE