[2020] KEHC 6960 (KLR)
The court found that the issues of title to land parcels LR.No.Bukhayo/Bugengi/1355 and 1356 are so intertwined with the probate proceedings that proceeding with the latter before the Environment and Land Court determines the title dispute would render the probate process futile. The court recognized the risk of...
Source-derived case information.
- Citation
- [2020] KEHC 6960 (KLR)
- Parties
- Applicant: Francisca Anyango Omojong; Respondent: Roseline Anyembe; Interested Party: Patrick Ouma Kokonya; Interested Party: Stephen Wandera Opili
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 313 of 2011
- Procedural Posture
- Probate and Administration / Ruling on Notice of Motion for Stay of Proceedings
- Outcome
- application allowed
- Judges
- KW Kiarie
- Legal Topics
- Stay of Proceedings, Jurisdiction, Conflicting Orders, Probate Matters, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francisca Anyango Omojong
Applicant
Roseline Anyembe
Respondent
Patrick Ouma Kokonya
Interested Party
Stephen Wandera Opili
Interested Party
Procedural Posture
Probate and Administration / Ruling on Notice of Motion for Stay of Proceedings
Legal Issues
- 1 Whether proceedings in the probate and administration cause should be stayed pending determination of a related Environment and Land Court case.
- 2 Whether there is a risk of conflicting orders if both matters proceed concurrently.
- 3 Whether the Environment and Land Court has jurisdiction over the land title issues central to the dispute.
Ratio Decidendi
The court found that the issues of title to land parcels LR.No.Bukhayo/Bugengi/1355 and 1356 are so intertwined with the probate proceedings that proceeding with the latter before the Environment and Land Court determines the title dispute would render the probate process futile. The court recognized the risk of conflicting orders if both matters proceeded concurrently. It held that the Environment and Land Court is the proper forum to determine the land title issues, and therefore, a stay of the probate proceedings is warranted until the ELC case is resolved. The application for stay was thus allowed to prevent an exercise in futility and to serve the ends of justice.
Court Disposition
application allowed
Orders
- There shall be a stay of proceedings in this cause pending the hearing and determination of Busia High Court Environmental and Land Court case No. 89 of 2018.
- Each party will meet own costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO. 313 OF 2011
IN THE MATTER OF THE ESTATE OF: CHARLES BWIRE KUNGURU........DECEASED
BETWEEN
FRANCISCA ANYANGO OMOJONG.............PETITIONER/APPLICANT
AND
ROSELINE ANYEMBE ...........................................................RESPONDENT
PATRICK OUMA KOKONYA ........................... 1ST INTERESTED PARTY
STEPHEN WANDERA OPILI ............................2ND INTERESTED PARTY
RULING
1. The petitioner/applicant moved the court by way of Notice of Motion dated 20th February 2019. She is seeking the following orders:
a. That there be a stay of proceedings in this cause pending the hearing and determination of Busia High Court Environmental and Land Court case No. 89 of 2018.
b. That costs be provided for.
2. The application is premised on the following grounds:
a. That case No.Busia HC Environment and Land court case no.89 of 2018 over Land parcel LR.No.Bukhayo/Bugengi/1355 and 1356 and same parties is pending.
b. That the issues raised in this cause will be conclusively dealt with in the ELC.
c. That there is a likelihood of conflicting orders in this cause and the EL.C case no.89 of 2018.
d. That the reliefs sought meets ends of justice.
3. The application was opposed on the following grounds:
a. That the said application is frivolous lacks merit and is a total abuse of court process.
b. That the applicant’s application is an afterthought and cannot be entertained at this stage.
c. That this court has powers to determine all issues and disputes regarding matters that falls under family division which this matter lies hence the Honourable court cannot stay the proceedings herein but to proceed and give determination.
d. That staying this proceedings, shall be viewed as the court transferring/donating its powers/jurisdiction to another court.
4. After hearing both parties, the following facts have emerged:
i. That the issue of title in respect of Land parcels LR.No.Bukhayo/Bugengi/1355 and 1356 are so intertwined and unless the issue is determined, the proceedings in this case will be an exercise in futility.
ii. That the dispute is before the court that has jurisdiction to determine the dispute.
5. I am therefore satisfied that the application has merits. The application is therefore allowed.
6. Each party will meet own costs.
DELIVEREDandSIGNEDatBUSIAthis25th dayof March, 2020
KIARIE WAWERU KIARIE
JUDGE