[2017] KEHC 5828 (KLR)
The court found that Daniel Ashton Omwaya, although the biological son and next of kin of the deceased Harun Newton Omwanda, had not applied to substitute his father as a party to the proceedings and did not possess a grant of letters of administration. As such, he lacked the legal capacity (locus standi) to seek...
Source-derived case information.
- Citation
- [2017] KEHC 5828 (KLR)
- Parties
- Petitioner: Haron Newton Omwanda; Petitioner: Gamaliel Shirabire; Objector: Morris Makunda Shikanda; Applicant: Daniel Ashton Omwaya
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 428 of 2000
- Procedural Posture
- Succession Cause / Ruling on Application for Joinder and Injunctive Relief
- Outcome
- application dismissed with costs to the objector
- Judges
- CM Njagi
- Legal Topics
- Joinder of Parties, Injunctive Relief, Locus Standi, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Haron Newton Omwanda
Petitioner
Gamaliel Shirabire
Petitioner
Morris Makunda Shikanda
Objector
Daniel Ashton Omwaya
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Joinder and Injunctive Relief
Legal Issues
- 1 Whether the applicant has locus standi to seek injunctive orders in the succession cause.
- 2 Whether the applicant should be enjoined as an interested party in the proceedings.
- 3 Whether injunctive relief can be granted to the applicant in the absence of a grant of letters of administration.
Ratio Decidendi
The court found that Daniel Ashton Omwaya, although the biological son and next of kin of the deceased Harun Newton Omwanda, had not applied to substitute his father as a party to the proceedings and did not possess a grant of letters of administration. As such, he lacked the legal capacity (locus standi) to seek injunctive relief or to stop any party from utilizing the land in question. The court further held that persons who had not sought leave to be enjoined in the matter were strangers and their opposition was expunged from the record. Consequently, the application was dismissed for lack of merit, with costs awarded to the objector.
Court Disposition
application dismissed with costs to the objector
Orders
- The application dated 19th January 2017 is dismissed with costs to Morris Makunda Shikanda (the objector).
- Persons not properly enjoined are expunged from the record.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION 428 OF 2000
HARON NEWTON OMWANDA
GAMALIEL SHIRABIRE ……..…………............................…….……… PETITIONERS
VERSUS
MORRIS MAKUNDA SHIKANDA ……………......…………….………… OBJECTOR
DANIEL ASHTON OMWAYA..............……………………………..…….. APPLICANT
RULING
1. The applicant herein, Daniel Ashton Omwaya, has filed an application dated 19th February 2012 seeking for orders that:-
1) Spent
2) That the applicant Daniel Ashton Omwaya be enjoined in this suit as an interested party.
3) That the status quo be maintained by the parties pending the hearing and determination of this succession cause.
4) That Givan Eshiwani, Nelly Annah Panyako, simon Mbaye, Baraza Atiti & Benedict Ambundo be permanently restrained from uprooting sugarcane and other crops, cutting down trees, farming, constructing or in any manner utilizing any part of LR. Butsotso Shibeye 1120 pending the hearing and determination of this application interpartes.
5) That Givan Eshiwani, Nelly Annah Panyako, simon Mbaye, Baraza Atiti & Benedict Ambundo be permanently restrained from uprooting sugarcane and other crops, cutting down trees, farming, constructing or in any manner utilizing any part of LR. Butsotso Shibeye 1120 pending the hearing and pending determination of this suit.
6) That costs of this application be in the cause.
2. The application is based on the grounds that:-
a) That the applicant is a beneficial owner of land parcel No. Butsotso/Shibeye 1120 which is occupied by three beneficiaries namely:-
i) Harun Newton Omwanda (now deceased) 13 acres
ii) Gamaliel Shirabire – 11 acres
iii) Maurice Makunda – 8 acres
iv) Taphas Oonda – 3 acres
v) Esokone Secondary School – 2 acres
b) That the applicant is the biological son of the late Harun Newton Omwanda who died on 17. 05. 2014.
c) That the applicant is the next of kin to his estate in his capacity as his survived son.
d) That the applicant has planted sugar-cane within land parcel No. Butsotso/Shibeye 1120.
e) That it is within his knowledge that third parties have invaded the said sugarcane and are maliciously uprooting the same.
f) That it will be in the interest of justice that status quo be maintained by the parties so that his sugar-cane investment is not prejudiced.
g) That it will be in the interest of justice that the prayers herein be granted.
3. The application was opposed by the objector in the case Morris Makunda Shikanda on the grounds that:-
1) The application is an abuse of the court process
2) The applicant has not applied to substitute his deceased father Harun Newton Omwanda who was one of the petitioners in which the succession cause related and he thereby has no locus standi to file the application.
3) That on 23rd March 2016 the court made orders revoking the earlier grant and no distribution of the estate has been done.
4. Apart from the above said objector some other people, Abel Baraza Atiti, Simon Mbayeh and others contained in a notice of appointment of advocates filed by Onsando & Co. Advocates on 28th April 2017, came forward to oppose the application. However, they did not first seek leave of the court to be enjoined in the matter. The people are thereby strangers in the matter and are thereby expunged from the record.
5. Back to the application of the applicant Daniel Ashton Omwaya. The applicant says that he is the son of Harun Newton Omwanda who was one of the petitioners in this case but now deceased. The applicant has not made an application to substitute his father in the matter. He is now praying for injunctive orders against some third parties from using Land Parcel No. Bustsotso/Shibeye/1120 which land belongs to the deceased in this succession cause. The applicant does not have a grant of letters of administration in regard to the estate of the said deceased. He therefore has no capacity of stopping anybody from utilizing the land. The application dated 19th January 2017 has no merits and is thereby dismissed with costs to Morris Makunda Shikanda (the objector).
Delivered dated and signed at Kakamega this 24th day of May, 2017.
J. NJAGI
JUDGE
In the presence of:
Morris Makunda – objector
Cc Paul