[2019] KEHC 2801 (KLR)
The High Court determined that it lacks jurisdiction to compel the land registrar to account for land registration matters under the Land Registration Act. Such disputes fall within the exclusive jurisdiction of the Environment and Land Court as established by the Constitution and relevant statutes. The...
Source-derived case information.
- Citation
- [2019] KEHC 2801 (KLR)
- Parties
- Applicant: Administratrix of the Estate of Ismail Bwakali Sambicha alias Bwakali Sambicha Ismail; Respondent: Land Registrar (unnamed)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 668 of 2015
- Procedural Posture
- Succession Cause / Post Ruling Directions Regarding Estate Asset Ascertainment
- Outcome
- Application for enforcement against the land registrar is declined for want of jurisdiction.
- Judges
- DN Musyoka
- Legal Topics
- Estate Administration, Land Registration, Jurisdiction of Courts, Probate Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Administratrix of the Estate of Ismail Bwakali Sambicha alias Bwakali Sambicha Ismail
Applicant
Land Registrar (unnamed)
Respondent
Procedural Posture
Succession Cause / Post Ruling Directions Regarding Estate Asset Ascertainment
Legal Issues
- 1 Whether the High Court has jurisdiction to compel a land registrar to account for land registration matters in a succession cause.
- 2 What is the proper forum for resolving disputes regarding registration and ownership of estate property.
Ratio Decidendi
The High Court determined that it lacks jurisdiction to compel the land registrar to account for land registration matters under the Land Registration Act. Such disputes fall within the exclusive jurisdiction of the Environment and Land Court as established by the Constitution and relevant statutes. The administratrix, as the legal representative of the estate, must pursue any issues regarding ownership or registration of estate property before the Environment and Land Court. Once ownership is ascertained through that forum, the probate court will proceed with distribution of the estate in accordance with succession law.
Court Disposition
Application for enforcement against the land registrar is declined for want of jurisdiction.
Orders
- The administratrix is directed to seek orders from the Environment and Land Court regarding ownership of the subject property.
- Distribution of the estate property shall proceed after ownership is ascertained by the Environment and Land Court.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 668 OF 2015
IN THE MATTER OF THE ESTATE OF ISMAIL BWAKALI SAMBICHA alias BWAKALI SAMBICHA ISMAIL (DECEASED)
RULING
1. I delivered a ruling herein on 3rd December 2018, wherein I made certain findings concerning the assets of the estate herein. I directed the land registrar to do certain things to facilitate solution to the impasse on the matter. Apparently the land registrar is not cooperating for some unknown reason.
2. It must be stated that succession proceedings are all about property. The court can only distribute the property of a dead person once that property has been ascertained. Where there are uncertainties about the property, only the custodian of government records on ownership of that property can assist the parties. .
3. The office of a land registrar is an office in the public service. The holder of that office is a public servant, serving for the benefit of the people, paid from public funds. He has a duty to serve the public. Whatever he does should not at his own whim. He is publically called to serve the people whose records he is custodian of. When such a person is directed by the court to do something or other to assist parties who are in court resolve their problems, he should be under a duty to comply. The court has coercive powers to compel compliance with its orders in cases where those who are expected to comply show arrogance and a cavalier attitude. Failure to obey such orders or display of disinterest could also be indication that the public officer could have something to hide, especially in such a case as the present where it is said property of an estate was subdivided and registration done without going through the mandatory succession process as expected in law. A lands officer who refuses to come to court to account for such anomalies exposes himself to accusations of running away from scrutiny.
4. Let me leave it at that. Issues relating to registration of land are governed by land legislation, the Land Registration Act (No. 3 of 2012) and the Land Act (No. 6 of 2012). Under that law, as read with Articles 162(2) and 165(5) of the Constitution, the High Court has no jurisdiction to call land registrars to account for their administration of land under that law. Under sections 2 and 101 of the Land Registration Act, the court for the purposes of that law is the Environment and Land Court.
5. The relevant provisions of the Land Registration Act state as follows:
“2. “Court” means the Environment and Land Court established under the Environment and Land Court Act, 2011, No. 19 of 2011 …”
Jurisdiction of court.
101. The Environment and Land Court established by the Environment and Land Court Act, 2011 No. 19 of 2011 has jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.”
6. The relevant constitutional provisions state as follows:
‘’162(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) …
(b) the environment and the use and occupation of, and title to, land.
165(5) The High Court shall not have jurisdiction in respect of matters—
(a) …
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).”
7. In view of what I have stated above, I would urge the administratrix to purpose issues on accountability by the relevant land registrar through the relevant land legislation and the Environment and Land Court. The assets of the estate vest in her by virtue of section 79 of the Law of Succession Act, Cap 160, Laws of Kenya, and she can sue over such assets under section 82 of the same Act.
8. Let the administratrix obtain orders from the Environment and Land Court on ownership of the subject property. Once the ownership of the property is ascertained through that process, the probate court shall proceed to distribute it in the usual way.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 1ST DAY OF NOVEMBER 2019
W. MUSYOKA
JUDGE