[2021] KEELC 339 (KLR)
The court determined that it could not proceed to make a substantive determination on the plaintiff's claim for adverse possession over the suit parcels of land, as the land forms part of the estate of a deceased person and is subject to ongoing succession proceedings in Homa Bay High Court Succession Cause No. 698...
Source-derived case information.
- Citation
- [2021] KEELC 339 (KLR)
- Parties
- Plaintiff: Ishmael Owano Owaya; Defendant: Lonah Bol Okur; Defendant: Cliff Oriwo Okuro
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 17 of 2021
- Procedural Posture
- Originating Summons / Interlocutory Ruling
- Outcome
- interlocutory orders issued; matter stood over for mention and directions
- Legal Topics
- Adverse Possession, Limitation of Actions, Succession Proceedings, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ishmael Owano Owaya
Plaintiff
Lonah Bol Okur
Defendant
Cliff Oriwo Okuro
Defendant
Procedural Posture
Originating Summons / Interlocutory Ruling
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to determine the claim for adverse possession over land that is subject to a pending succession cause.
- 2 Whether the plaintiff can pursue a claim for adverse possession in respect of land registered in the name of a deceased person before the succession process is concluded.
- 3 Whether the orders in the succession cause preclude the Environment and Land Court from making determinations affecting the estate.
Ratio Decidendi
The court determined that it could not proceed to make a substantive determination on the plaintiff's claim for adverse possession over the suit parcels of land, as the land forms part of the estate of a deceased person and is subject to ongoing succession proceedings in Homa Bay High Court Succession Cause No. 698 of 2014. The Environment and Land Court recognized its jurisdiction under the Constitution and relevant statutes but found it necessary to first peruse the record of the succession cause to ensure that any orders made would not prejudice the beneficiaries of the estate or contravene existing orders. Accordingly, the court ordered the Deputy Registrar to call for the original...
Court Disposition
interlocutory orders issued; matter stood over for mention and directions
Orders
- The Deputy Registrar is to call for the original record and/or certified typed copies of proceedings, orders and/or determination, if any, in Homa Bay High Court Succession Cause number 698 of 2014 within thirty (30) days for perusal by this court.
- Mention to confirm compliance and directions set for 20th January 2022.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT HOMA BAY
ELC OS 17 OF 2021
(FORMERLY MIGORI ELC OS E009 OF 2020)
IN THE MATTER OF: LIMITATION OF ACTIONS ACT CAP 22
AND
IN THE MATTER OF: A CALIM FOR ADVERSE POSSESSION
PURSUANT TO SECTION 38 OF LIMITATIONS OF ACTIONS ACT
AND
IN THE MATTER OF: LR NO. KANYADA/KANYABALA/3646 AND 3647
ISHMAEL OWANO OWAYA..........................................................................................PLAINTIFF
VERSUS
LONAH BOL OKUR..............................................................................................1ST DEFENDANT
CLIFF ORIWO OKURO......................................................................................2ND DEFENDANT
RULING NO. 1
1. The instant ruling is rendered worthwhile before the determinative or final judgment in this suit. Indeed, in The Black’s Law Dictionary 10th Edition at page 971, the term “Final judgment” means
“A court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes attorney fees) and enforcement of the judgment---Also termed final appealable judgment, final decision, final decree, definitive judgment, determinative judgment, final appealable order.”
2. It is noteworthy that the plaintiff, Ishmael Owano Owaya previously represented by the firm of Ochoki and Company Advocates and currently by the firm of O.H Bunde and Company Advocates pursuant to the notice of change of Advocates dated 14th October 2021, mounted this suit by way of an Originating Summons dated 26th October 2020 and filed herein on 27th October 2020. He claims to have acquired title over a portion of Land Reference Numbers Kanyada/Kanyabala/3646 and 3647 (the suit parcels of land) which are sub divisions of LR Number Kanyada/Kanyabala/1013 measuring approximately Twelve Decimal Six hectares (12. 6Ha) in area (The original land), by way of prescription or adverse possession.
3. The defendants, Lorna Bol Okuro and Cliff Oriwo Okuro represented by the firm James Nyakundi and Company Advocates, opposed the Originating Summons by way of a replying affidavit sworn on 21st January 2021 and filed in court on 25th January 2021. They termed the suit devoid of merit and a waste of the court’s time, among other things.
4. At paragraphs 2, 3, 4 and 5 of the plaintiff’s affidavit in support of the Originating Summons, it is deposed that the original land was registered in the name of Christopher Okuro Aruji (Deceased). That the grant of letters of administration in respect of the estate of the Deceased were confirmed on 15th December 2015 in Homa Bay High Court Succession Cause number 698 of 2014. That the plaintiff filed summons for revocation of the grant but the same was not determined as the High Court referred the matter to this court for hearing and determination.
5. Paragraphs 2, 4, 5, 6, 7, 8 and 10 of the 1st defendant’s replying affidavit speak to the existence of the succession cause as pointed out in paragraph 4 hereinabove. That there are subsisting orders in the succession cause. That an attempt by the plaintiff to have ownership of the suit parcels of land would jeopardize the beneficiaries of the estate of the deceased and contravene section 74 of the Law of Succession Act Chapter 160 Laws of Kenya.
6. It is trite law that the jurisdiction of a court or tribunal flows from either the Constitution or legislation or both; see the Supreme Court of the Republic of Kenya decision in the case of Samwel Kamau Macharia and another-vs-Kenya Commercial Bank Limited and others (2012) eKLR .
7. Undoubtedly, the jurisdiction of this court emanates from Article 162 (2) (b) of the Constitution of Kenya, 2010 and sections 4 and 13 of the Environment and Land Court Act, 2015 (2011); see also Republic-vs- Karisa Chengo and 2 others (2017) eKLR.
8. I bear in mind the foregoing and that this court has not had the advantage of perusing the record of the succession cause to arrive at an informed finding in this suit. So, pursuant to Section 3 of the Environment and Land Court Act (supra) as read with Sections 1A, 1B, 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya, I order and direct thus;
a) The Deputy Registrar of this Honourable Court to call for the original record and or certified typed copies of proceedings, orders and or determination, if any, in Homa Bay High Court Succession Cause number 698 of 2014 within the next thirty (30) days from this date for perusal by this court to meet the best ends of justice.
b) Mention to confirm compliance and directions on 20th January 2022.
DELIVERED, DATED AND SIGNED AT HOMA BAY THIS 15TH DAY OF DECEMBER, 2021.
G M A ONGONDO
JUDGE
Present
1. Plaintiff
2. 2nd Defendant
3. Okello, Court Assistant