[2022] KEHC 12184 (KLR)

In re Estate of Chebos Ruto (Deceased) (Succession Cause 133 of 2012) [2022] KEHC 12184 (KLR) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12184 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 133 of 2012

EKO Ogola, J

July 18, 2022

IN THE MATTER OF THE ESTATE OF CHEBOS RUTO (DECEASED)

Between

Loice J. Kibiwott alias Loice J. Chebos

Petitioner

and

Joshua Limo Bartocho

Objector

Ruling

1. Before me for determination is the Notice of Motion dated 5th July, 2021 filed by the Petitioner herein. The motion prays for the following orders;1. Spent.2. There be an ex-parte interim stay of proceedings in Iten E & L Case No. 29 of 2020 between Joshua Limo Bartocho and Daniel Cheruiyot pending the hearing of this application inter-partes.3. That there be stay of proceedings in Iten E & L Case No. 29 of 2020 pending the hearing and determination of this instant Cause.4. That the Certificate of Confirmation of Grant issued on 19th April, 2016 and all consequential orders be set aside.5. That the Summons for Confirmation of Grant dated 18th November, 2015 be struck out.6. That land title deeds Mosop/Kapchorua1121 and 1122 be cancelled.7. That the Applicant’s Summons for Confirmation of Grant dated 25th January, 2017 be listed for hearing and determination.8. Costs be provided for.

2. The application is premised on the grounds on the face thereof and is further supported by the Affidavit of the Loice J. Kibiwot sworn on 5th July, 2021.

The Petitioner’s/Applicant’s Case 3. The Petitioner averred that she is the only surviving widow of the deceased and his estate comprised of one asset being land parcel No. Mosop/Kapchorua/202.

4. The Petitioner averred that the legal fees for filing of this instant cause was raised from the proceeds obtained from selling 2 acres to the subject land to one Mr. Daniel Cheruiyot. She further averred that when Objector who is a member of her extended family learnt that she had sold the said portion, he became furious as he was interested in buying the said portion. In view of the aforementioned, the Objector attempted to refund the purchase price to the said Mr. Daniel Cheruiyot but the petitioner refused stating she had no intentions of rescinding her sale agreement with Mr. Cheruiyot.

5. According to the Petitioner, the Objector’s conduct towards her thereafter changed and that the Objector informed her that since they are related they could use an Advocate from their clan in pursuing the Succession Cause. The Petitioner deposed that the Objector would then bring her to Eldoret town where she would be asked to sign documents without being informed which purpose they were going to serve.

6. The Petitioner averred that she has since learnt that the M/s Bundotich Korir & Company Advocates filed an application dated 18th November, 2015 seeking confirmation of the grant that was allegedly issued on 19th October, 2009. She further averred that she has also since learnt that her affidavit in support of the said application proposed that she be apportioned 11. 5 acres whereas the Objector was to get 3 acres of the subject land. The Petitioner further averred that on 1st April, 2016, the court allowed the Summons as prayed and on 19th April, 2016 the Court issued a Certificate of Confirmation of Grant.

7. In January, 2017 the petitioner’s Advocate on record Mr. Birir invited her to his office where she was asked to sign Summons for Confirmations of the grant made to her on 20th July,2013. During the said visit she instructed Mr. Birir Advocate that she wanted to hold the subject land in trust for her children. The Petitioner contends that the said Summons were never prosecuted and blames the Objector for interfering with the same.

8. The Petitioner has since learnt from the documents she obtained from Court that on 11th October, 2017 she had apparently filed a Notice to Act in person in this matter and had also sought for rectification of the Certificate of confirmation of grant that had been issued 19th April, 2016. She further averred that the application seeking the rectification of grant was apparently allowed and an amended Certificate of Confirmation Grant was issued on 28th March, 2019.

9. The Petitioner averred that in mid-September, 2020 she was called by Mr. Daniel Cheruiyot who informed her that the Objector herein had obtained title deed for 3 acres comprised in the subject land and was threatening to evict him from his lawful portion via Iten E & L Case No. 29 of 2020. The Petitioner contends that the Objector herein is not a beneficiary of the deceased neither did he purchase the said land.

10. The Petitioner urged the Court to set aside all the Summons filed and orders obtained by the firm of M/s Bundotich Korir & Co. Advocates as the estate of the deceased has never instructed them to act on their behalf. The Petitioner also prayed that the Court cancel title deeds to parcel of land known as Mosop/Kapchorua/1121 & 122 and that the estate of the deceased be distributed afresh and in accordance with the Summons dated 25th January, 2017.

Objector’s/Respondent’s Case 11. The application is opposed vide the Replying Affidavit dated 27th July, 2021 by Joshua Limo Bartocho, the Objector herein. The Objector’s case is that he is the registered owner of all that parcel of land known as Mosop/Kapchorua/1121. The Objector averred that he bought the aforesaid property from the Petitioner herein being the daughter of the deceased. He further averred that he had paid the entire purchase price.

12. The Objector averred that upon the demise of the deceased herein the petitioner instituted these proceedings wherein the Suit property was transferred to his name by transmission and the reminder of the estate in the name of the Petitioner herein. The Objector maintains that he followed all due process in the acquisition of the said parcel of land.

13. The Objector contends that in 2020, a third party by the name Daniel Cheruiyot encroached into the suit property prompting him to institute eviction proceedings against him vide Iten PMCC E& L No. 29 of 2020. The Objector further contends that the Petitioner is not a party to the proceedings at the lower Court and therefore has no locus to seek stay of the proceedings therein. The Objector further contends that the proceedings in the lower Court touch on issues of ownership of the suit property between Daniel Cheruiyot and himself and that the aforesaid dispute falls outside the jurisdiction of this Court.

14. The Objector contends that the present application is full of falsehood calculated at hoodwinking the Court. The Objector maintains that the firm of Bundotich Korir was duly instructed by the Petitioner herein to seek for rectification of grant. The Objector also contends that this instant application has been brought 5 years since the grant has been issued and has been made in bad faith and amounts to abuse of court process.

Determination 15. I have carefully considered the competing submissions by the parties. I have also considered the authorities relied on, and the relevant provisions of the law cited. In my view, the only issue for determination is whether the orders sought herein can be issued.

16. From onset I must mention that stay of proceedings is a grave matter to be entertained only in the most deserving cases as it impacts the right to expeditious trial. It is a discretionary power exercisable by the court upon consideration of the facts and circumstances of each case. This jurisdiction is derived from of Order 42 rule 6 (1) of the Civil Procedure Rules.

17. In the case of Re Global Tours & Travel LtdHCWC No.43 of 2000 Ringera, J (as he then was) held that:“…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…”

18. In the present case the Petitioner/Applicant seeks to stay proceedings of the Iten E & L Case No. 29 of 2020 pending the determination of this Cause. From the record it is clear that the Petitioner herein is not party to the suit filed at Iten Law Courts. In the circumstances, I agree with the Objector that the Petitioner has no locus standi in Iten E & L Case No. 29 of 2020 and therefore cannot seek to stay proceedings in which she is not a party to.

19. The Applicant herein has also sought orders that the Certificate of Confirmation of Grant issued on 19th April, 2016 and all other consequential orders be set aside. The Applicant has further prayed that the Summons for Confirmation of Grant dated 18th November, 2015 be struck out. The Applicant further seeks that the title deeds to parcel of land known as Mosop/Kapchorua/1121 and 1122 be cancelled and that her Summons for Confirmation of Grant dated 25th January, 2017 be listed for hearing and determination.

20. From the pleadings before Court it is clear that issues being raised by the Applicant surround the sole asset of the estate of the deceased herein being parcel of land known as Mosop/Kapchorua/202. The Applicant’s claim in my view challenges the manner in which the Objector came to be in possession of all that parcel of land known as Mosop/KapchoruA/1121 and 1122. The above claim forms the basis of her asking this Court to set aside the aforementioned Certificate of Confirmation issued on 19th February, 2016 and cancel the title deeds parcel of land known as Mosop/Kapchorua/1121 and 1122. It is notable in this regard that disputes primarily concerning ownership of land or title to land fall within the jurisdiction of the Environment and Land Court as provided by Article 162 (2)(b) of the Constitution, and Section 13(1) and (2) of the Environmental and Land Court Act. In the circumstances of this case I am not able to render myself to the issues being raised by the Petitioner herein pending the determination of the issue of ownership of the suit property herein. It is worth noting that jurisdiction goes to the heart of exercise of power by the court. Where there is no power for the court to act with respect to a particular issue, it ought not touch it.

21. However, if the petitioner feels aggrieved by the proceedings in the ELC, the petitioner is at liberty to join those proceedings as an interested party and urge his interests in that cause. Prayer 4 and 5 herein which go into the validity of the confirmed grants can be dispensed with in a full hearing Viva Voce.

22. In view of the foregoing, the petitioner’s application dated 5th, July, 2011 is dismissed, save that prayer 4 and 5 thereof shall be subject to viva voce interparties hearing.Costs in the cause.

DATED AND DELIVERED AT ELDORET THIS 18TH DAY OF JULY 2022. ........................E. K OGOLAJUDGE