[2022] KEELC 15444 (KLR)
The court found that the applicant, having previously obtained judgment in his favour for the suit land through adverse possession, and with the consent of all beneficiaries to the proposed subdivisions and transfers, was entitled to the orders sought. Although the judge questioned why the applicant did not simply...
Source-derived case information.
- Citation
- [2022] KEELC 15444 (KLR)
- Parties
- Applicant: Paul Kinyanjui Gicobo (Suing as the administrator representing the Estate of Kinyanjui Roiyana (Deceased)); Respondent: Land Registrar, Ngong Land Registry
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case E006 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Originating Summons
- Outcome
- summons allowed
- Judges
- MN Gicheru
- Legal Topics
- Land Registration, Subdivision of Land, Transfer of Land, Adverse Possession, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kinyanjui Gicobo (Suing as the administrator representing the Estate of Kinyanjui Roiyana (Deceased))
Applicant
Land Registrar, Ngong Land Registry
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Originating Summons
Legal Issues
- 1 Whether the Land Registrar should be compelled to register and transfer the subdivisions of L R Ngong/Ngong/705 as consented to by the family.
- 2 Whether the applicant followed the correct procedure in seeking the orders.
Ratio Decidendi
The court found that the applicant, having previously obtained judgment in his favour for the suit land through adverse possession, and with the consent of all beneficiaries to the proposed subdivisions and transfers, was entitled to the orders sought. Although the judge questioned why the applicant did not simply file a notice of motion in the earlier case, this procedural issue did not outweigh the merits of the application. The court exercised its discretion to allow the originating summons, finding that the applicant had established a proper basis for the registration and transfer of the subdivided parcels as agreed by the family.
Court Disposition
summons allowed
Orders
- The Land Registrar, Ngong Land Registry is ordered to register the subdivisions of L R Ngong/Ngong/705 being Ngong/Ngong/98180 (4 acres), Ngong/Ngong/98181 (1 acre), Ngong/Ngong/98182 (1 acre), and Ngong/Ngong/98183 (4 acres) as consented to by the family.
- The Land Registrar, Ngong Land Registry is ordered to transfer the four parcels as shall be executed and submitted by the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
Gicobo (Suing as the administrator representing the Estate of Kinyanjui Roiyana (Deceased) v Land Registrar, Ngong Land Registry (Environment & Land Miscellaneous Case E006 of 2022) [2022] KEELC 15444 (KLR) (19 December 2022) (Ruling)
Neutral citation: [2022] KEELC 15444 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Miscellaneous Case E006 of 2022
MN Gicheru, J
December 19, 2022
Between
Paul Kinyanjui Gicobo (Suing as the administrator representing the Estate of Kinyanjui Roiyana (Deceased)
Applicant
and
Land Registrar, Ngong Land Registry
Respondent
Ruling
1. This Ruling is on the Originating Summons dated April 12, 2022. The same is brought under Order 37 Rule 8 of the Civil Procedure Rulesand all other enabling provisions of law.
2. The summons seeks the following orders;i.That the Land Registrar, Ngong Land Registry do register the subdivisions of L R Ngong/Ngong/705 being Ngong/Ngong/98180 measuring 4 acres, Ngong/Ngong/98181 measuring 1 acre, Ngong/Ngong/98182 measuring 1 acre and Ngong/Ngong/98183 measuring 4 as consented to by the family.ii.That the Land Registrar Ngong Land Registry do transfer the four parcels in number (ii) above as shall be executed and submitted by the Applicant.
3. The summons is supported by eight (8) grounds, an affidavit by the Applicant and eight (8) annexures.
4. In summary, the Applicant says that he filed Kajiado ELC Case No 57 of 2018 in which he claimed the suit land which is Ngong/Ngong/705 through adverse possession.
5. The court found in his favour on December 10, 2019. It has now become necessary for all the beneficiaries of the estate of the applicant’s father’s estate to share the estate. They have all consented as above. The judgment in the ELC Case filed earlier recognizes the Applicant as the only beneficiary. Since there are other beneficiaries, he found it prudent to file the current suit.
6. I have carefully considered the summons in its entirety. I do not understand why the Applicant could not file a simple notice of motion in ELC No 57 of 2018 instead of filing this suit.
7. Be that as it may, I find that the current suit has merit and I allow the summons dated April 12, 2022 as drawn. It is so ordered.
Dated signed and delivered virtually at Kajiado this 19thday of December, 2022. M.N. GICHERUJUDGE