[2019] KEHC 4031 (KLR)
The court found that the applicant had demonstrated a prima facie interest in the disputed 5-acre portion of LR. 6614/4, supported by sale agreements. The court had already recognized the pending ELC case in its earlier judgment and ordered the portion to be held in abeyance. Preserving the land pending the outcome...
Source-derived case information.
- Citation
- [2019] KEHC 4031 (KLR)
- Parties
- Applicant: Richard Toroitich; Respondent: Mike Lelmet & Others; Objector: Julia Kimoi Chebiator & Others
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 137 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Preservation of Property Pending Determination of Related Land Case
- Outcome
- application allowed in part
- Legal Topics
- Preservation of Property, Pending Suit, Estate Administration, Purchaser Interest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Toroitich
Applicant
Mike Lelmet & Others
Respondent
Julia Kimoi Chebiator & Others
Objector
Procedural Posture
Succession Cause / Ruling on Application for Preservation of Property Pending Determination of Related Land Case
Legal Issues
- 1 Whether the portion of land claimed by the applicant should be preserved pending the outcome of ELC case no. 17 of 2014.
- 2 Whether the applicant has demonstrated sufficient interest in the disputed portion to warrant preservation.
- 3 Whether the enforcement of the succession judgment would prejudice the applicant's pending claim.
Ratio Decidendi
The court found that the applicant had demonstrated a prima facie interest in the disputed 5-acre portion of LR. 6614/4, supported by sale agreements. The court had already recognized the pending ELC case in its earlier judgment and ordered the portion to be held in abeyance. Preserving the land pending the outcome of the ELC case would not prejudice the estate or other parties, and would protect the applicant's interest while allowing the land court to determine the substantive ownership issue. The application was therefore allowed to the extent of preserving the disputed portion in the name of the deceased until the ELC matter is concluded.
Court Disposition
application allowed in part
Orders
- The portion of LR No. 6614/4 measuring 5 acres claimed by Richard Toroitich is preserved and shall remain in the name of the deceased pending determination of ELC case No. 17 of 2014 at Kitale.
- Directions in the judgment of 10th December, 2018 regarding the portion shall stand.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
SUCCESSION CAUSE NO. 137 0F 2010
IN THE MATTER OF THE ESTATE OF THE LATE WILLIAM CHERIUYOT LELMET (DECEASED)
MIKE LELMET & OTHERS-PETITIONERS/RESPONDENT
VERSES
JULIA KIMOI CHEBIATOR & OTHERS ........OBJECTORS
AND
RICHARD TOROITICH....................................APPLIACANT
RULING
1. The Applicants vide his application dated 23rd May, 2019 claims that he purchased part of Land Parcel number LR. 6614/4 from the deceased herein. According to his affidavit in support he purchased 5 acres and not 2 acre as per the judgement of this court dated 10th December, 2018.
2. He has thus sought orders that the said portion be preserved as was ordered by this court. He went on to state that there was a suit number ELC 17 of 2014 which was pending as at the time of this cause proceeding. He attached two sets of agreements which showed that he purchased the land from the deceased.
3. In his view therefore should the judgement be enforced then he stands to suffer loss and that the matter at the ELC court shall be rendered nugatory.
4. The Respondent has file grounds of opposition which he has stated inter alia that the application has been brought too late in the day and that the same is premature and has no legal basis.
5. I have perused the application and note that in paragraph ( E) of the decision of this court dated 10th December, 2018, the court stated that;
“The portion which is currently contested by Dr. Richard Toroitich vide ELC case no. 17 of 2014 be held in abeyance. However should the same revert to the estate then it shall equally be shared by the three objectors equally.”
6. The court was alive to the matter. The court did not want to venture into the jurisdiction of the Land and Environment Court which in any case does not have jurisdiction.
7. What then shall the estate suffer if the portion claimed by the applicant is held in abeyance or preserved pending the outcome of the land case? I do not see any prejudice. Prima facie, the documents or the agreements attached to the application shows that the Applicant may have purchased 5 acres from the deceased. That would be for that court to determine.
8. For now, and having captured the same in the judgement, I find that it may be prudent to preserve the same. This will not in any way stop the other processes in the estate but will give comfort to the applicant as he battles at the land court. It appears that the applicant is already occupying the land.
9. Consequently, the application is allowed only to the extent that the portion currently claimed by the Applicant RICHARD TOROITICH comprised in LR No. 6614/4 measuring 5 acres is preserved and shall remain in the name of the deceased pending the determination of case No. 17 of 2014 at Kitale ELC. The directions on how it should be dealt with as directed in the judgment of 10th December, 2018 shall stand.
10. Each party shall meet its respective costs.
Dated, signed and delivered in open court at Kitale this 26th day of September, 2019.
_____________________
H K .CHEMITEI
JUDGE
26/9/19
In the presence of:-
Ambutsi for the Applicant
Cheptoo for Sifuna for the Administrator
Court Assistant – Kirong
Ruling read in open court.