[2022] KEHC 2767 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

SUCCESSION CAUSE NO. 197 OF 2017

IN THE MATTER OF THE ESTATE OF KITUMA NGANDA MUSAU (DECEASED)

JULIUS MUTHUNGU MUKANDA.....APPLICANT/PROTESTOR

-VERSUS-

MBULUNGA KITUMA...............................................RESPONDENT

RULING

1. Before me is an application dated 22/12/2021 brought by way of summons under section 45, 47 and 82(b) of the Law of Succession Act and Rules 43 of the Probate and Administration Rules.

2. The application has 4 prayers two (2) of which have been spent as follows –

1. (Spent)

2. (Spent)

3. The respondent MBULUNG’A KITUMA NGANDA his children, servants, and /or relatives be restrained from intermeddling with the land title no. Ukia/Utaati/449 entering, farming, grazing on or residing on the land or undertaking any activity on the land in any manner howsoever and /or from in any manner interfering with the applicant/protestor occupation and possession thereof.

4. Costs of this application be borne by the respondents.

3. The application has grounds on the face of the summons that the land was sold by the deceased to the applicant through a sale agreement in 1981 and that the respondent is now acting in a manner to evict, disposess or displace the applicant of the land which amounts to intermeddling.

4. The application was filed with a supporting affidavit sworn by the applicant in which it was deposed that the land was subject to Land Disputes Tribunal No. 103 of 2005 in which the applicant was awarded the land, and that the Tribunal’s award was adopted by the court in Makueni Senior Resident Magistrates’ Land Dispute Tribunal Case No. 66 of 2007, and that the respondent and his mother had fraudulently filed a Succession Case without informing the applicant, and that this court made a ruling in which it directed that the applicant should file a case in the Environment and Land Court (ELC).

5. The application is opposed through a replying affidavit sworn on 9th February 2021 by the respondent in which it was deponed that the applicant filed ELC case No. 84 of 2018 which was struck out on 28/1/2020, and that this court was clear that the issue of ownership of the subject land be determined in the ELC court.

6. The application was canvassed through filing of written submissions, and I have perused and considered the submissions filed by Moses Odawa & Company for the applicant, and those filed by BM Mungata & Company for the respondent.

7. I note that it is admitted by both parties that this court in this very succession cause, ordered the applicant to pursue the issue of ownership of the subject land in the ELC court. It is also admitted that the applicant thereafter, filed a suit in the ELC court, which suit was dismissed on a technicality. No other suit on same appears to have been filed thereafter.

8. The applicant has now come again to this succession court through the present application, seeking for orders that relate to ownership of the land described as “occupation and use” of the disputed land, which has nothing to do with entitlement in succession.

9. In my view, the dispute on the ownership of the subject land has to be sorted out and determined in the ELC court as earlier directed by this court, before the applicant can come to the succession court to claim an interest in the estate of the deceased relating to the subject land. In this regard the discretionary orders sought herein by the applicant against the respondent can only be given by the ELC court that will determine the ownership of the subject land and not this succession court.

10. I therefore find no merits in the application, and dismiss the application with costs to the respondent.

DELIVERED, SIGNED & DATED THIS 2ND DAY OF FEBRUARY 2022, IN OPEN COURT AT MAKUENI.

……………………….

GEORGE DULU

JUDGE