[2017] KEELC 1319 (KLR)
The court found that the plaintiff had proved her claim on a balance of probabilities. The evidence, including the Certificate of Confirmation of Grant and the family agreement, established that the plaintiff was entitled to 4 acres of the deceased's estate to hold in trust for the family members of the 2nd house....
Source-derived case information.
- Citation
- [2017] KEELC 1319 (KLR)
- Parties
- Plaintiff: Grace Ahete Parapara; Defendant: Jacob Barasa Parapara; Defendant: Nathan Wanjala Parapara; Defendant: Tom Parapara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 90 of 2015
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- FM Njoroge
- Legal Topics
- Succession Distribution, Administration of Estates, Land Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Ahete Parapara
Plaintiff
Jacob Barasa Parapara
Defendant
Nathan Wanjala Parapara
Defendant
Tom Parapara
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to 4 acres of the deceased's estate as per the confirmed grant and family agreement.
- 2 Whether the defendants should be restrained from interfering with the plaintiff's use and enjoyment of the 4 acres.
- 3 Whether the 1st defendant should be compelled to execute transfer instruments for the plaintiff's share.
Ratio Decidendi
The court found that the plaintiff had proved her claim on a balance of probabilities. The evidence, including the Certificate of Confirmation of Grant and the family agreement, established that the plaintiff was entitled to 4 acres of the deceased's estate to hold in trust for the family members of the 2nd house. The defendants, having been served but failing to defend the suit, did not rebut the plaintiff's evidence. The court held that the plaintiff was entitled to a permanent injunction restraining the defendants from interfering with her use and enjoyment of the 4 acres, and that the 1st defendant should be compelled to execute all necessary transfer instruments to effectuate the...
Court Disposition
Judgment for the plaintiff.
Orders
- A permanent injunction is issued restraining the defendants from trespassing onto or interfering with the plaintiff's peaceful and quiet use and enjoyment of the 4 acres demarcated out of Kipsaina/Kipsoen Scheme Plot No. 37.
- The 1st defendant is compelled to execute all transfer instruments and cooperate with the plaintiff to have her share transferred into her name.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 90 OF 2015
GRACE AHETE PARAPARA………….....……………PLAINTIFF
VERSUS
JACOB BARASA PARAPARA…………....….. 1ST DEFENDANT
NATHAN WANJALA PARAPARA……….....….2NDDEFENDANT
TOM PARAPARA…………………….…………3RDDEFENDANT
J U D G M E N T
1. The plaintiff commenced this suit by way of a plaint dated 18/6/2015 in that plaint she claimed that she is one of the Administrators of the Estate of the late Parapara Zairi alongside Jacob Barasa Parapara, that she was awarded 4 acres out of the 37 acres estate of the deceased Parapara Zairi upon Succession Proceedings being concluded; that survey has been conducted and each party’s share identified/demarcated but the defendants have ganged up to deny the plaintiff used and right to enjoy and quietly possess her entitlement.
2. The plaintiff says she has been forced to leave her land bare and unutilized.Further the 1st defendant,who is the plaintiff’s co-administrator to the deceased’s estate has frustrated the plaintiff efforts to have the plaintiff’s share transferred to her name.The plaintiff therefore seeks an order of permanent injunction to restrain the defendant from trespassing onto or interfering with the plaintiff’s or her agent’s peaceful and quiet use and enjoyment of the 4 acres demarcated out of all that parcel of land known as Kipsaina/Kipsoen Scheme Plot No. 37.
3. She also prays that the 1st defendant be compelled to execute all transfer instruments and to cooperate with the plaintiff to have her share transferred into her name and in default the court to authorize the Deputy Registrar of the Court to execute all relevant transfer forms.She also seeks costs of the suit.
4. bThe three defendants were all served, and an Affidavit of Service sworn by one George Mumali on 8/2/2016 was filed in court as evidence of service.They however failed to file any memorandum of appearance or defence. The hearing proceeded ex-parte on 27/7/2017 when the plaintiff alone gave evidence.
5. The plaintiff testified that Parapara Zairi was her husband, that he passed on in the year 2015,that the defendantsare the children of other wives of the deceased that she only child is a daughter, that she is the second wife, that the deceased had shared out his property among his wives, that all family members were in consensus that the property of the deceased should be shared out as per the deceased wishes, that when her husband passed on, a government surveyor came to survey the land that the family members signed an agreement which she produced PExh3. The document which shows the distribution of the land in terms of acreage after the survey was produced asPExh4. Consequently she decided to sell the land after the defendants troubled her.However the land has not been transferred to the buyer;it has not even been transferred to the plaintiff’s name.
6. The plaintiff also produced the grant of Letters of Administration and the Confirmation of Grant,they relate to her deceased husband and his property.P.Exh1 is the Certificate of Confirmation of Grant. It shows that a person known as Grace Ayode Parapara was allocated 4 acres to be registered and transferred into her name “to hold in trust for the family members of the 2nd house”. Since the plaintiff has already testified that she was the 2nd wife to the deceased, it is only proper to conclude that this was her allocation notwithstanding the different name used.
7. As seen from PExh2,the application for letter of administration in the names of Jacob Parapara and Grace A. Parapara (the plaintiff) had been consented to by the family of the deceased.P Exh2 is the consent which they executed.
8. PExh4 is a list showing how the land from the deceased’s estate would be shared out.The plaintiff is listed as No.2 on that list.
9. As I indicated earlier this suit is unopposed. I find that the plaintiff has proved her claim on a balance of probabilities. I enter judgement for the plaintiff against the defendants in terms of prayers (a) (b) and(c) of the plaint.
It is so ordered.
Dated, signed and delivered at Kitale on this 24th day ofAugust, 2017.
MWANGI NJOROGE
JUDGE
24/8/2017
Before - Mwangi Njoroge Judge
Court Assistant – Isabellah/Picoty
N/A for both parties
Judgment read in open court in the absence of both parties who had been notified.
MWANGI NJOROGE
JUDGE
24/8/2017