[2017] KEHC 10138 (KLR)
The High Court, sitting as a succession court, lacks jurisdiction to determine disputes relating to the use, occupation, or title to land, as such matters fall within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution. The applicant, having obtained a grant,...
Source-derived case information.
- Citation
- [2017] KEHC 10138 (KLR)
- Parties
- Applicant: John Linus Owino Oruko; Respondent: Lawrence Olala Osodo
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 95 of 2015
- Procedural Posture
- Succession Cause / Ruling on Notice of Motion for Eviction and Restraining Orders
- Outcome
- application dismissed for want of jurisdiction
- Judges
- DO Ohungo
- Legal Topics
- Jurisdiction of Courts, Eviction Orders, Grant of Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Linus Owino Oruko
Applicant
Lawrence Olala Osodo
Respondent
Procedural Posture
Succession Cause / Ruling on Notice of Motion for Eviction and Restraining Orders
Legal Issues
- 1 Whether the High Court in a succession cause has jurisdiction to issue eviction orders relating to land forming part of the estate.
- 2 Whether the applicant is entitled to restraining orders against the respondent regarding occupation and use of the subject land parcel.
Ratio Decidendi
The High Court, sitting as a succession court, lacks jurisdiction to determine disputes relating to the use, occupation, or title to land, as such matters fall within the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution. The applicant, having obtained a grant, should have transferred the property into his name and pursued any eviction or restraining orders before the Environment and Land Court. The application for eviction and restraining orders is therefore dismissed for want of jurisdiction.
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application for eviction and restraining orders is dismissed for want of jurisdiction.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
SUCCESSION CAUSE NO95 OF 2015
AND
IN THE MATTER OF THE ESTATE OF DOMTILLA OPUDO (DECEASED)
JOHN LINUS OWINO ORUKO............................APPLICANT
VERSUS
LAWRENCE OLALA OSODO...........................RESPONDENT
RULING
1. By a notice of motion dated 01/03/2017 JOHN LINUS OWINO ORUKO (the applicant) prays that this court issues an order of eviction against LAWRENCE OLALA OSODO (respondent) from land parcel No /KOBITA/KAWUOR/1218. Further that restraining orders do issue against the respondent by himself, his family members, his assignees or anyone acting on his instructions from interfering with the applicant’s quiet possession and occupation of the said parcel.
2. The application is premised on the grounds that the respondent’s application which had sought revocation of grant which had been issued to the applicant was dismissed on 5th September 2016. However the respondent continues to occupy the subject property
3. In his replying affidavit the respondent deposes that this court cannot issue an eviction order as the applicant is a stranger to the estate.
4. What this dispute now boils down to is no longer within the confines of a succession cause but has now metamorphosed into a land dispute. Once the applicant obtained grant, he ought to have effected transfer of the asset into his name, then file his prayers before the Environment and Land Court which has jurisdiction as provided under Article 162 (2) (b) that:-
“Parliament shall establish courts with status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land.”
5. It is clear that the orders sought arise from the applicants claim to the right to occupy and use the land in question and he ought to go before the proper forum. Consequently I decline to delve into the matter beyond this for want of jurisdiction and the application fails on that ground alone and is dismissed. Each party shall bear its own costs.
Delivered and dated this 15th day of May, 2017 at Homa Bay
H.A. OMONDI
JUDGE