[2021] KEHC 9544 (KLR)
The court found that while it had jurisdiction to appoint administrators and deal with succession matters, it lacked jurisdiction to conclusively determine the ownership of land parcel Bungoma/Naitiri/183, as this is the preserve of the Environment and Land Court. The court therefore transferred the file to the...
Source-derived case information.
- Citation
- [2021] KEHC 9544 (KLR)
- Parties
- Applicant: Mary Obiswa Kolongo; Respondent: Jane Mingarusha Kolongo; Applicant: Board of Management Sango Secondary and Primary Schools
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 3 of 2020
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside/vary Orders Regarding Estate Land
- Outcome
- Application partially allowed; file transferred to Environment and Land Court for determination of ownership; status quo maintained.
- Judges
- SN Riechi
- Legal Topics
- Succession of Estates, Administration of Estates, Land Ownership Disputes, Jurisdiction of Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Obiswa Kolongo
Applicant
Jane Mingarusha Kolongo
Respondent
Board of Management Sango Secondary and Primary Schools
Applicant
Procedural Posture
Succession Cause / Ruling on Application to Set Aside/vary Orders Regarding Estate Land
Legal Issues
- 1 Whether the High Court had jurisdiction to determine ownership of land parcel Bungoma/Naitiri/183.
- 2 Whether the order vesting land parcel Bungoma/Naitiri/183 in the names of the administrators was proper given the claim by the Board of Management.
- 3 Whether the land in question formed part of the estate of the deceased.
Ratio Decidendi
The court found that while it had jurisdiction to appoint administrators and deal with succession matters, it lacked jurisdiction to conclusively determine the ownership of land parcel Bungoma/Naitiri/183, as this is the preserve of the Environment and Land Court. The court therefore transferred the file to the Bungoma ELC Court for determination of the ownership issue. The court maintained the status quo regarding occupation and use of the land pending the outcome in the ELC. The orders vesting the land in the names of the administrators were subject to the determination of ownership by the ELC. Each party was to bear its own costs.
Court Disposition
Application partially allowed; file transferred to Environment and Land Court for determination of ownership; status quo maintained.
Orders
- The file is transferred to the Bungoma Environment and Land Court for determination of the ownership of land parcel Bungoma/Naitiri/183.
- Pending the outcome in the Environment and Land Court, the applicant is allowed to continue occupying and utilizing the portion she has been using (about 3.5 acres).
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NUMBER 3 OF 2020
(Formerly Kitale Hc. Succession 30 of 2015)
IN THE MATTER OF ELIZABETH MARA WIFE OF KOLONGO
(DECEASED)
MARY OBISWA KOLONGO............................APPLICANT/RESPONDENT
VERSUS
JANE MIGARUSHA KOLONGO......................................1ST RESPONDENT
BOARD OF MANAGEMENT SANGO SECONDARY &
PRIMARY SCHOOLS………...........……2ND RESPONDENT/APPLICANT
RULING
This is application dated 4th June 2020 by the Applicant Board of Management Sango Secondary and Primary Schools seeking orders;
(a) That pending hearing and determination of this application inter partes there be an interim order of stay of execution of the ruling and or orders of Hon. H.K. Chemitei J. issued on 28. 5.2020 directing that parcel No. Bungoma/Naitiri/183 be registered in the joint names of the two administrators.
(b) That pending hearing and determination of this application inter partes there be an order of status quo in respect of ground occupation and use by the parties.
(c) That order of Hon. H.K. Chemitei J vesting land parcel Bunngoma/Naitiri/183 as part of the estate of Elizabeth Mara w/o Korongo be set aside, vacated and or reviewed forthwith.
(d) That the order issued by Hon. H.K. Chemitei on 28. 5.2020 directing that Land Parcel LR No. Bungoma/Naitiri/183 be registered in the joint names of the two administrators be reviewed, varied or set aside forthwith.
The grounds for the application are that there are errors apparent on the record particularly that the court made an order for the Land subject of the application Bungoma/Naitiri/183 to the estate of deceased Elizabeth Mara, when the same was registered in the name of Settlement Fund Trustee; that the court did not have jurisdiction to handle the matter when the same is preserve of the Environment and Land Court; and finally that the order to vest the suit land in the names of the beneficiaries of the estate of Elizabeth Mara was premature and therefore the status quo existing before the ruling of the Hon. Justice Chemitei should be maintained.
Briefly Elizabeth Mara Kolongo the deceased was the registered owner of Land Parcel Bungoma/Naitiri/183. She died on 13. 1.1975. Mary Obiswa Kolongo and Jane Mingarusha Kolongo were wives of the sons of the deceased, thus making them daughters in-law of the deceased. Jane Mingarusha Kolongo so applied for grant of letters of administration to the estate. Mary Obiswa Kolongo objected to her exclusion in the estate, and by order dated 25. 5.2020 Chemitei J. both Mary and Jane were appointed Co-administrators of the Estate. The learned Judge then directed that the land be vested in the names of the two administrators of the estate.
The Board of Management Sango Secondary and Primary School objected to such vesting of land in the administrators names, claiming that the deceased had surrendered the said land to the school and was therefore not part of the estate of the deceased and was not available for distribution.
The learned Judge appreciating these rival submissions directed;
In the premises, putting all the factors constant in the interest of justice this court make the following orders;
(a) The applicant herein MARY OBISWA KOROGO is hereby enjoined as a joint Administrator of the estate of the deceased herein the grant issued on the 17th October 2018 is hereby amended to that fact.
(b) The land parcel number BUNGOMA/NAITIRI/183 shall be registered in the joint names of the two administrators.
(c) The parties are hereby advised to pursue legal redress in terms of the actual ownership of the suit land at the Environment and Land Court.
(d) This cause is hereby transferred to Bungoma High Court and any other subsequent proceedings regarding the estate shall be filed at the said High court which is within the geographical jurisdiction of the suit land.
(e) Pending the outcome of order (c) above the Applicant is hereby allowed to continue in occupation and to utilize a portion she has been utilizing measuring about 3. 5 acres in land parcel number Bungoma/Naitiri/183 and the County Police Commander Bungoma to ensure compliance of this order.
(f) Each party shall bear its own costs.
Chemitei J. appreciated that the main issue for determination is who was the owner of the land Bungoma/Naitiri/183, before the deceased died on 13. 1.1975. The appropriate forum for resolving this issue of ownership of Bungoma/Naitiri/183 is the Environment and Land Court.
I therefore direct that the file be and is hereby transferred to the Bungoma ELC Court for determination on the issue of ownership of the subject parcel of land.
This matter be mentioned before Olao J. on 8. 2.2021 for directions.
Dated andDelivered at Bungoma this 28Th day of January, 2021
S.N. RIECHI
JUDGE