[2020] KEHC 2105 (KLR)
The High Court, sitting as a succession court, determined that its jurisdiction is confined to the distribution of the deceased's estate among beneficiaries and does not extend to issuing eviction orders. Although the judgment and confirmed grant allocated the disputed property to the applicant's house, the court...
Source-derived case information.
- Citation
- [2020] KEHC 2105 (KLR)
- Parties
- Applicant: Aggrey Simiyu Wanda; Respondent: Ruth Nanyama Wanda; Applicant: Magadalene Wanda
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 137 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application for Eviction Order
- Outcome
- application dismissed
- Legal Topics
- Succession Distribution, Jurisdiction of Court, Eviction Orders, Matrimonial Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aggrey Simiyu Wanda
Applicant
Ruth Nanyama Wanda
Respondent
Magadalene Wanda
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Eviction Order
Legal Issues
- 1 Whether the High Court in a succession cause has jurisdiction to issue eviction orders in respect of property distributed to a beneficiary.
- 2 Whether the respondent should vacate the property allocated to the applicant's house as per the confirmed grant and judgment.
Ratio Decidendi
The High Court, sitting as a succession court, determined that its jurisdiction is confined to the distribution of the deceased's estate among beneficiaries and does not extend to issuing eviction orders. Although the judgment and confirmed grant allocated the disputed property to the applicant's house, the court held that any application for eviction must be made before the appropriate forum, namely the Environment and Land Court, which is vested with the requisite jurisdiction to hear and determine such matters. The court emphasized that eviction orders are drastic and require full hearing of all parties, and thus cannot be granted in the context of succession proceedings. Consequently,...
Court Disposition
application dismissed
Orders
- The application dated 7th October 2019 is dismissed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 137 OF 2004
IN THE MATTER OF THE ESTATE OF THE
LATE JOSEPH WAMUKOTA WANDAH - (DECEASED)
AGGREY SIMIYU WANDA....................................1ST ADMINISTRATOR
RUTH NANYAMA WANDA................................2ND ADMINISTRATORS
VERSUS
MAGADALENE WANDA............INTERESTED PARTY /APPLICANT
RULING
1. By her application dated 7th October 2019, the Applicant herein who is one of the beneficiaries of the deceased estate prays that the 2nd Administrator RUTH NANYAMA WANDAH be evicted from Land Parcel Number 18/458 situate at Bidii within Kitale Municipality. She deponed that the said parcel of land was given to their second house as per the judgement of this court dated 30th May 2018 and the grant issued on the same day.
2. In her home-grown affidavit in support sworn dated 7th November 2019 she premised her application on the above judgement as attached to the application. She says that the respondent should honour the judgement of this court as there was no order stopping its implementation.
3. The Respondent has filed grounds of opposition date 29th January 2020 arguing among others that this court does not have jurisdiction to entertain the application except only on distribution. The Respondent has at the same time criticised the procedure adopted by the Applicant in making the application as the same does not comply with the laid down rules as per the provisions of the Succession Act and the rules thereunder.
4. In an emotive submission, Prof. Sifuna, Counsel for the Respondent has stated that the property in which the Respondent lives is her matrimonial home and therefore it would be greatly prejudicial if she is evicted. Whereas, respectfully, that may be so, the decision of this court nevertheless for the reasons therein gave the property to the 2nd house and that decision is yet to be challenged.
5. The parties have filed their written submissions which the court has perused extensively. The issue which is of paramount importance is that raised by the Respondent, namely, whether this court is seized of the relevant jurisdiction to issue eviction orders.
6. The court agrees nonetheless with the applicant that its findings in the above judgement clearly gave the 2nd house the property and the Respondent who was a second widow of the deceased had her own home. In light of the above therefore, she ought to essentially vacate the property.
7. This court however is not armed with the jurisdiction to issue such eviction orders. That in my view, is the preserve of another court preferably a Land and Environment court. This I believe was for a good measure as there are other intricacies and evidence which may arise in the process. Suffice to state that the province of this court was purely the distribution of the estate to the beneficiaries. This court cannot order an eviction in compliance with the orders of distribution. Eviction orders are drastic and all the parties ordinarily must be fully heard before it can be issued.
8. On this score alone, the application is not merited. The other issues concerning the drafting of the application and its failure to follow the rules is secondary for now and the court sees no need to expend its energy on it.
9. The application is therefore dismissed. Each party shall bear its own costs.
Dated, Signed and delivered at Kitale this 27th day of October 2020.
...............................
H. K. CHEMITEI.
JUDGE
27/10/2020