[2023] KEHC 24486 (KLR)
The appeal was dismissed because the appellant failed to properly identify and place before the appellate court the specific applications and orders being challenged. The court found that there was no evidence of the referenced applications dated 11th November 2021 and 12th November 2021 in the record. Without clear...
Source-derived case information.
- Citation
- [2023] KEHC 24486 (KLR)
- Parties
- Appellant: Kweke Charo Mwandondo; Respondent: Jane Gilbert Chisenga; Respondent: Sickla Kiti Mwachiru; Respondent: Joyce Masika Mwachiru
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E137 of 2022
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- SM Githinji
- Legal Topics
- Succession Proceedings, Land Restriction Orders, Jurisdiction of Succession Court, Limitation of Actions, Ownership Disputes, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kweke Charo Mwandondo
Appellant
Jane Gilbert Chisenga
Respondent
Sickla Kiti Mwachiru
Respondent
Joyce Masika Mwachiru
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in law and fact by allowing the applications dated 11th November 2021 and 12th November 2021.
- 2 Whether the succession court had jurisdiction to deal with ownership disputes in land matters.
- 3 Whether the orders of restriction against the title of the deceased were properly issued.
Ratio Decidendi
The appeal was dismissed because the appellant failed to properly identify and place before the appellate court the specific applications and orders being challenged. The court found that there was no evidence of the referenced applications dated 11th November 2021 and 12th November 2021 in the record. Without clear identification of the impugned applications and orders, the appellate court could not address the merits of the appeal. The court reiterated that it is the appellant's responsibility to ensure that the record is complete and that the matters for determination are properly before the court. Consequently, the appeal lacked merit and was dismissed with costs to the respondents.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
In re Estate of Gilbert Chisenga (Deceased) (Civil Appeal E137 of 2022) [2023] KEHC 24486 (KLR) (26 October 2023) (Judgment)
Neutral citation: [2023] KEHC 24486 (KLR)
Republic of Kenya
In the High Court at Malindi
Civil Appeal E137 of 2022
SM Githinji, J
October 26, 2023
IN THE MATTER OF THE ESTATE OF GILBERT CHISENGA (DECEASED)
Between
Kweke Charo Mwandondo
Appellant
and
Jane Gilbert Chisenga
1st Respondent
Sickla Kiti Mwachiru
2nd Respondent
Joyce Masika Mwachiru
3rd Respondent
(Being an Appeal from the Ruling of Hon G.O.Kimanga – SRM at Kilifi made on 6th December, 2022 in Kilifi Succession Cause No.E083 of 2021)
Judgment
Hon. Justice S. M. GithinjiMr Mwangunya Advocate for the AppellantMr Mwandilo Advocate for the Respondent 1. This appeal arises from the ruling delivered by Hon. G.O Kimanga-SRM in Kilifi Succession Cause No. E083 of 2021 delivered on 6th December 2022 which ruling gave orders directing Kilifi Lands registrar register a restriction against the property known as Tezo/Roka/135.
2. Dissatisfied with the ruling, the appellant lodged this appeal on the following grounds;1. That the trial magistrate erred in law and fact by allowing the application dated 11th November 2021 and 12th November 2021. 2.That the trial magistrate erred in law and fact by failing to find that a succession court has no jurisdiction to deal with the ownership disputes in land matters.3. That the trial magistrate erred in law and fact by issuing orders of restriction against a title whose registered owner is deceased and not the applicant.4. That the trial magistrate erred in law and fact by issuing orders despite operation of section 4 (4) of the Limitations of actions act which rendered the entire dispute time barred.5. That the trial magistrate erred in law and fact by issuing orders of restriction in a vacuum in so far as the same being till further orders of the court.6. That the trial magistrate erred in law and fact by failing to appreciate the appellant/plaintiff’s written submissions.
Disposition 3. I have reviewed the trial court’s record. I note that the respondents herein filed a notice of motion in the lower court dated 11th May 2022 seeking injunctive orders and a restriction be placed on the suit property. Orders in respect of this application were issued by the trial court on 6th December 2022. The appellant herein seeks an appeal in respect of the said orders. In her memorandum of appeal, she cites that the trial court erred in law and fact by allowing the application dated 11th November 2021 and 12th November 2021. From the material placed before me there is no existence of the referenced applications specifically dated 11th November 2021 and 12th November 2021. It is the duty of the appellant to bring to the court’s attention the proper applications and pursuant orders they wish to be addressed on. In the circumstances I am unable to determine which application gave rise to the orders that the appellant appealed against. The upshot is that the appeal fails for want of merit and the same is hereby dismissed with costs.
JUDGMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 26TH DAY OF OCTOBER, 2023. S.M. GITHINJIJUDGEIn the Presence of; -Ms Katana holding brief for Mwangunya for the AppellantMr Mwandiro is for the Respondent (absent)