[2019] KEELC 5085 (KLR)
The court found that both the present suit and the succession cause objection concern the validity of the respondents' titles to the suit land, which were acquired through the succession process. Since the objection in the succession cause was filed earlier and its determination could resolve or significantly impact...
Source-derived case information.
- Citation
- [2019] KEELC 5085 (KLR)
- Parties
- Applicant: Isaiah Omondi Odhiambo; Respondent: Angeline Anyango Akinyi; Respondent: Jothan Godfrey Mulamba; Respondent: Milton H. A. Okello
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 88 of 2015
- Procedural Posture
- Stay Application / Ruling on Interlocutory Application for Stay of Proceedings Pending Determination of Objection in Succession Cause
- Outcome
- Application allowed in part; proceedings stayed pending determination of objection in succession cause; applicant to pay costs.
- Judges
- A Kaniaru
- Legal Topics
- Stay of Proceedings, Succession Disputes, Fraudulent Title Acquisition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Omondi Odhiambo
Applicant
Angeline Anyango Akinyi
Respondent
Jothan Godfrey Mulamba
Respondent
Milton H. A. Okello
Respondent
Procedural Posture
Stay Application / Ruling on Interlocutory Application for Stay of Proceedings Pending Determination of Objection in Succession Cause
Legal Issues
- 1 Whether the proceedings in this suit should be stayed pending the determination of the objection in Busia HC Succession Cause No. 295/2012.
- 2 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that both the present suit and the succession cause objection concern the validity of the respondents' titles to the suit land, which were acquired through the succession process. Since the objection in the succession cause was filed earlier and its determination could resolve or significantly impact the issues in this suit, it is appropriate to stay the proceedings herein to avoid conflicting decisions and unnecessary duplication. The applicant's approach, however, has exposed the respondents to needless expense, justifying an award of costs against him.
Court Disposition
Application allowed in part; proceedings stayed pending determination of objection in succession cause; applicant to pay costs.
Orders
- There shall be a stay of hearing of this case and/or proceedings herein pending the hearing and determination of the objection dated 10/7/2015 or any other in Busia HC Succession Cause No. 295/2012.
- The applicant shall pay the costs of this application to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
ENVIRONMENT AND LAND COURT
ELCNO. 88 OF 2015
ISAIAH OMONDI ODHIAMBO...............................PLAINTIFF/APPLICANT
= VERSUS =
ANGELINE ANYANGO AKINYI...............1ST DEFENDANT/RESPONDENT
JOTHAN GODFREY MULAMBA.............2ND DEFENDANT/RESPONDENT
MILTON H. A. OKELLO............................3RD DEFENDANT/RESPONDENT
R U L I N G
1. The application before me for determination is a Motion on Notice dated 22/1/2018. The Applicant – ISAIAH OMONDI ODHIAMBO – is the Plaintiff herein while the Respondents– ANGELINE ANYANGO AKINYI, JOTHAN GODFREY MULAMBAandMILTON H. A. OKELLO –are the Defendants. The Applicant is praying for the following:
(a) That there be a stay of hearing of this case and/or proceedings herein pending the hearing and determination of the objection dated 10/7/2015 or any other in BUSIA HC SUCC CAUSE No. 295/2012.
(b) That costs be provided for.
2. The application is anchored on grounds, interalia, that the Respondents acquired the subject matter, meaning land parcels L.R. MARACHI/BUMALA/2744, 2745, and 2746, on transmission in Busia HC PA&A No. 295/2012 where there is already an objection pending to revoke the grant herein. The Respondents titles are being challenged in the succession matter. This suit is itself also a challenge to the same titles. The applicant apprehends that conflicting decisions might arise if the two matters proceed. The objection in the succession cause was filed earlier by the same Applicant. He therefore wants this suit stayed to await the outcome of the objection.
3. It appears clear that the 1st Respondent is now deceased. She has not been substituted in this case. Instead, the Applicant withdrew the suit against her on 19/6/2018. The 2nd & 3rd Respondents responded to the application vide a replying affidavit filed on 5/2/2018. According to these two Respondents, the application is brought in bad faith. It was deposed interalia, that there appears to be collusion in this matter to defeat the ends of justice as the Applicant has caused his brother to substitute the deceased Respondent in the succession matter. The Applicant was also accused of not explaining why he has not prosecuted his objection in the succession cause since he filed it in 2015.
4. The application was canvassed by way of written submissions. The Applicant’s submissions were filed on 20/3/2019. It appears clear that the Applicant is of the view that what he is seeking in the succession matter by way of an objection will achieve the same result he seeks to get in this matter. He also fears that there can be conflicting decisions.
5. The 2nd and 3rd Respondents submissions were filed on 5/4/2019. The Applicant was accused of bringing his application belatedly. Had it been brought earlier, the two respondents believe it would have been merited. According to the two Respondents, the Applicant has two options viz: withdraw this suit and give costs to the Respondents or to withdraw the objection in the succession matter.
6. I have had a look at the suit as filed. The cumulative thrust of the applicant’s suit is that there was fraud in the manner in which the succession matter was filed and prosecuted. It is not clear to me however how the Applicant decided that the alleged fraud could be ventilated in this matter itself instead of the succession matter where it was said to have arisen.
7. Both sides are however agreed that there is an objection pending in the succession matter. It appears clear that the objection was filed earlier than this case. To me, the more appropriate thing to do in the circumstances is to allow the objection to be handled first. I consider that whatever prejudice the Respondents may suffer due to continued pendency of this suit before the objection is decided can properly be compensated by way of costs.
8. The upshot, is that I allow the application herein in terms of prayer (a). As regards the prayer of costs (prayer (b)), my view is that the Applicant’s approach to the issue at hand is exposing the Respondents to needless expense. The Applicant is therefore condemned to pay the costs of this application.
Dated, signed and delivered at Busia this 10th day of September, 2019.
A. K. KANIARU
JUDGE
In the Presence of:
Applicant: Absent
1st Respondent: Absent
2nd Respondent: Absent
3rd Respondent: Absent
Counsel for the Applicant: Present
Counsel for the Respondents: Present
CA: Nelson Odame