[2023] KEHC 2830 (KLR)
The court held that a locational chief does not have the authority to confirm ownership or registration of land, as their role in probate proceedings is limited to confirming whether a deceased person was a resident within their jurisdiction. The applicant's request to compel the chief to confirm land ownership was...
Source-derived case information.
- Citation
- [2023] KEHC 2830 (KLR)
- Parties
- Applicant: John Kasudi Mulembani; Respondent: Rosemary Chiteri Mulembani
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 6 of 1997
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application
- Outcome
- Application partially allowed; orders sought declined except for confirmation of residency.
- Judges
- WM Musyoka
- Legal Topics
- Probate and Administration, Compelling Witness, Evidence Collection, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kasudi Mulembani
Applicant
Rosemary Chiteri Mulembani
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court should compel the Chief of Mau Summit Location to write a letter confirming ownership and occupancy of Mau Summit/Mau Summit Block2/130 (Baraka) plot No 130 by the deceased.
- 2 Whether a locational chief has jurisdiction to confirm land ownership or only residency for probate purposes.
Ratio Decidendi
The court held that a locational chief does not have the authority to confirm ownership or registration of land, as their role in probate proceedings is limited to confirming whether a deceased person was a resident within their jurisdiction. The applicant's request to compel the chief to confirm land ownership was therefore misplaced. The court found that evidence regarding the acquisition and ownership of the land in question should be sought from the Catholic Diocese of Nakuru, which allegedly sold the land to the deceased, rather than from the chief. Consequently, the court declined to grant the orders as sought but directed the chief to confirm only the residency status of the...
Court Disposition
Application partially allowed; orders sought declined except for confirmation of residency.
Orders
- The Chief of Mau Summit Location is ordered to write a letter to the court confirming whether or not the deceased, Atanasi Murembani Kasuti, ever resided within his area of jurisdiction.
Full Case Text
Judgment text and source record
14 paragraphs
In re Estate of Saulo Okonyolo Okutoyi (Deceased) (Succession Cause 6 of 1997) [2023] KEHC 2830 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2830 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 6 of 1997
WM Musyoka, J
March 24, 2023
Ruling
1. This matter is part-heard. Evidence was taken on November 27, 2019, from 1 witness, John Kasudi Mulembani.
2. The matter has stalled at that stage, as a motion, dated January 27, 2022, by the said John Kasudi Mulembani, who I shall refer to as the applicant. He seeks that the Chief of Mau Summit Location be compelled write a letter making certain confirmations with respect to ownership and occupancy of Mau Summit/Mau Summit Block2/130 (Baraka) plot No 130, by the deceased herein, Atanasi Murembani Kasuti. It is alleged that the deceased had bought that parcel of land from the Catholic Diocese of Nakuru, under the Makao project, and upon his demise the widow, Rosemary Chiteri Mulembani continued to use it. It is said that the same was not transferred to the name of eth deceased, and the land registrar, Nakuru, had advised that the area chief write a letter to show that the deceased was a resident of that area. When approached, it is said, the said chief declined to write the letter, hence the application.
3. The application is resisted by the Rosemary Chiteri Mulembani, by way of preliminary objection, on grounds that there was no reasonable cause to compel the chief to write the letter.
4. It would appear that the applicant is collecting evidence to boost his case, and he would want the court to compel the chief to do certain things to aid his case. A locational chief has no role in ownership and registration of property. The best a chief can do, with respect to probate proceedings, is to indicate whether or not a particular person was a resident of a particular area or not. Details of the land he occupied and whether the same belonged to him may be matters beyond his jurisdiction. In this case, the property was allegedly acquired from the Catholic church, and it would appear that that is where the applicant should be looking for evidence to support his case.
5. I am not persuaded that I should grant the orders sought in the application, in the manner they are framed. The best I can do is to order that the Chief of Mau Summit Location to write a letter to the court confirming whether or not the deceased herein, Atanasi Murembani Kasuti, ever resided within his area of jurisdiction.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 24thDAY OF March2023WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Maosa, instructed by Maosa & Company, Advocates for the administrator.Mr. Mukabi, instructed by Mukabi & Company, Advocates for John Kasudi Mulembani.