[2011] KEHC 3910 (KLR)
The court held that it had no jurisdiction to make orders regarding title No. 590, as it was not an asset subject to distribution in the succession proceedings. The succession cause before the court related solely to title No. 591, which remained in the deceased's name. The applicant's complaints concerning title...
Source-derived case information.
- Citation
- [2011] KEHC 3910 (KLR)
- Parties
- Respondent: Jackson Shapaya Amere; Applicant: Elphas Aseka Akhungu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 229 of 1996
- Procedural Posture
- Succession Cause / Ruling on Application to Remove Restriction on Title
- Outcome
- application dismissed
- Legal Topics
- Succession Proceedings, Rectification of Grant, Land Title Restrictions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Shapaya Amere
Respondent
Elphas Aseka Akhungu
Applicant
Procedural Posture
Succession Cause / Ruling on Application to Remove Restriction on Title
Legal Issues
- 1 Whether the High Court in succession proceedings can order removal of restrictions on a land title not forming part of the deceased's estate.
- 2 Whether the applicant's complaints regarding title No. 590 are properly before the succession court.
Ratio Decidendi
The court held that it had no jurisdiction to make orders regarding title No. 590, as it was not an asset subject to distribution in the succession proceedings. The succession cause before the court related solely to title No. 591, which remained in the deceased's name. The applicant's complaints concerning title No. 590 were therefore not properly before the succession court and should be pursued in the appropriate forum. Additionally, the applicant had already lost the 5 acres in question through separate proceedings (HCCC 73/2000 (O.S.)), and any further claim must be addressed in those proceedings. Consequently, the application to remove the restriction was dismissed as lacking merit.
Court Disposition
application dismissed
Orders
- The application dated 3.2.2003 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 229 OF 1996
IN THE MATTER OF THE ESTATE OF THE LATE WANJERA A. MUNANGA – DECEASED
BETWEEN
JACKSON SHAPAYA AMERE.........................................................................PETITIONER/RESPONDENT
VERSUS
ELPHAS ASEKA AKHUNGU .................................................................................OBJECTOR/APPLICANT
RULING
1. On 26. 3.1998, Tanui, J. appointed Jared Amele Anyela, (son of the deceased herein) as the administrator of the deceased’s estate. He added as follows in doing so:
“If any party ............... has any interest he should claim it against the Petitioner.”
2. On 7. 4.1999, Jared Amele Anyela aforesaid sought to confirm the grant and on 10. 5.1999, the same was confirmed and land parcel No. Marama/Shinamwenyuli/519 was to be inherited as follows;
i)Jackson Shapaya Nyangweso -5 acres
ii)Jared Amele Anyela- 2 acres
3. On 8. 2.2000 however, one Elphas Aseka Akhungu filed a Summons for Rectification seeking orders that the Certificate of Confirmation of grant be rectified so that Jared Amele Anyela should inherit the whole 7 acres comprised in the title. His reason for doing so was that the certificate was extracted contrary to the orders made on 26. 3.1998 when the grant was revoked and a fresh one issued to Jared Anyela. From the record, Elphas Akhungu aforesaid was claiming that the deceased was his father and that he too was entitled to the land (see Affidavit sworn on 14. 1.1997).
4. Tanui, J. upon hearing parties, dismissed Akhungu’s Application dated 8. 2.2000 and advised him to file suit against Jared Anyela if he had any claim to the land.
5. What is now before me is an Application by Jackson Shapaya Amere dated 3. 2.2003 seeking orders that the restrictions placed against title No. Marama/Shinamwenyuli/590 vide H.C.C.C. No. 73/2002 (O.S.) be removed.
6. I have seen the greencard for titles Nos. 590 and 591. No. 590 is registered in Shapaya’s name while 591 is registered in the deceased’s name.
7. The Succession proceedings before me relate to title No. 591 and I see no reason to make any orders relating to title No.590 which is not an asset subject to distribution by this court. The Applicant’s complaints if at all, for that reason alone would have no merit at all.
8. The Applicant, Jackson Shapaya should therefore pursue his claim elsewhere than in the present proceedings.
9. Lastly, this Cause has been pending since 1996. I note that the grant was confirmed and subsequently, Elphas Aseka Akhungu obtained orders in HCCC. 73/2000 (O.S.) that he should be registered as proprietor of 5 acres of land to be excised out of title No. 591.
10. I have stated elsewhere above that the 5 acres had been ordered by Tanui, J. to be inherited by Jackson Shapaya. He has now lost that 5 acres by proceedings elsewhere. It is to those proceedings that he must return if he wants the land as he seems to.
11. In any event, the Application dated 3. 2.2003 is without merit for reasons given and is dismissed with no order as to costs.
12. Orders accordingly.
Delivered, Dated and Signed at Kakamega this 22nd day of February, 2011.
ISAAC LENAOLA
J U D G E