[2020] KEHC 622 (KLR)
The court found that the ruling of 1st October, 2015 by Hon. Judge Tuiyott was clear and unambiguous. The phrase 'the portion it occupies' as used in the ruling referred specifically to the land comprising the homestead occupied by the family of Jackson Opondo Mbiya on parcel Marachi/Bujumba/2. The court held that...
Source-derived case information.
- Citation
- [2020] KEHC 622 (KLR)
- Parties
- Applicant: Milton Oundo Mbiya; Respondent: Ochieng Opondo Nyongesa
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 85 of 2005
- Procedural Posture
- Probate and Administration Application / Ruling on Application for Interpretation of Prior Court Order
- Outcome
- application allowed; clarification granted
- Judges
- KW Kiarie
- Legal Topics
- Succession, Grant Confirmation, Estate Distribution, Interpretation of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milton Oundo Mbiya
Applicant
Ochieng Opondo Nyongesa
Respondent
Procedural Posture
Probate and Administration Application / Ruling on Application for Interpretation of Prior Court Order
Legal Issues
- 1 What is the meaning and import of the phrase 'the portion it occupies' in paragraph 14(b)(ii) of the ruling dated 1st October, 2015 regarding the entitlement of Jackson Opondo Mbiya's family in land parcel No. Marachi/Bujumba/2.
- 2 Whether the court's previous order requires clarification to enable execution by the surveyor.
Ratio Decidendi
The court found that the ruling of 1st October, 2015 by Hon. Judge Tuiyott was clear and unambiguous. The phrase 'the portion it occupies' as used in the ruling referred specifically to the land comprising the homestead occupied by the family of Jackson Opondo Mbiya on parcel Marachi/Bujumba/2. The court held that no further interpretation was necessary and directed that the surveyor should approach the subdivision on this basis. The absence of submissions or opposition from the respondent did not affect the clarity of the original order or the necessity of the present clarification for the execution of the court's orders and the confirmation of grant.
Court Disposition
application allowed; clarification granted
Orders
- The phrase 'the portion it occupies' in the ruling dated 1st October, 2015 means the land comprising the homestead only.
- The surveyor is to approach the subdivision of Marachi/Bujumba/2 on this basis.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO. 85 OF 2005
IN THE MATTER OF THE ESTATE OF:
MBIYA WERE.............................................................................DECEASED
BETWEEN
MILTON OUNDO MBIYA...............................PETITIONER/ APPLICANT
AND
OCHIENG OPONDO NYONGESA ............OBJECTOR/RESPONDENT
RULING
1. Milton Oundo Mbiya, the applicant herein moved the court by way of chamber summons dated 22nd June, 2020 under sections 47 of the Law of Succession Act and Rules 49 & 73 Probate and Administration Rules. He is seeking the following orders:
a) That this honourable court be pleased to give the full meaning and import of the phrase “THE PORTION IT OCCUPYS” [Sic] in paragraph 14 (b) (ii) in the ruling dated and delivered on 1st October, 2015.
b) That costs be in the cause.
2. The application is premised on the following grounds:
a) That a dispute has arisen as to the exact meaning and import of paragraph 14 (b) (ii) in the ruling dated 1st October, 2015 in relation to the entitlement of Jackson Opondo Mbiya’s family in land parcel No. Marachi/Bujumba/2.
b) Owing to the said dispute, the surveyor is unable to execute the order of the court issued on 3rd December, 2019.
c) The court on 11th March, 2020 ordered the parties to file a formal application to have the dispute resolved.
d) That it is imperative that this application be determined to pave way for the confirmation of grant.
3. In his supporting affidavit, the applicant urged the court to award the family of Jackson Opondo Mbiya land comprising of the homestead only.
4. The objector/respondent did not file any response to the application neither did he file any submissions. Mr. Jumba for the objector/respondent on 29th July 2020 was given an extension of time to file submissions by 31st August 2020 after failing to file the same within the agreed time frame. By 31st August 2020 no submissions had been filed and I therefore proceeded to write the ruling without the benefit of the objector/respondent’s submissions.
5. I have perused the entire ruling by Hon. Judge Tuiyott dated 1st October 2015. This ruling is very clear and does not require any interpretation. When the judge said:
The family of Jackson Opondo Mbiya is entitled to the portion it occupies (sic) on Marachi/Bujumba/2.
He meant the land comprising of the homestead only. This is how the surveyor ought to approach the subdivision.
DELIVEREDandSIGNEDatBUSIAthis6thday of October, 2020
KIARIE WAWERU KIARIE
JUDGE