[2014] KEHC 2749 (KLR)
The Probate and Administration Court lacks jurisdiction to order removal of a caution registered against land under the Land Registration Act, 2012. While the applicants are administrators of the deceased's estate and the caution affects estate property, the statutory procedure for removal of a caution is governed...
Source-derived case information.
- Citation
- [2014] KEHC 2749 (KLR)
- Parties
- Applicant: James Mwima Sikedi; Applicant: Alfred Okumu Sikedi; Respondent: William Josei Diffu
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 284 of 2010
- Procedural Posture
- Probate and Administration Cause / Ruling on Application for Removal of Caution
- Outcome
- application dismissed for want of jurisdiction
- Legal Topics
- Removal of Caution, Jurisdiction of Court, Probate and Administration, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mwima Sikedi
Applicant
Alfred Okumu Sikedi
Applicant
William Josei Diffu
Respondent
Procedural Posture
Probate and Administration Cause / Ruling on Application for Removal of Caution
Legal Issues
- 1 Whether the Probate and Administration Court has jurisdiction to order removal of a caution registered against the deceased's land.
- 2 What is the proper procedure for removal of a caution under the Land Registration Act, 2012.
Ratio Decidendi
The Probate and Administration Court lacks jurisdiction to order removal of a caution registered against land under the Land Registration Act, 2012. While the applicants are administrators of the deceased's estate and the caution affects estate property, the statutory procedure for removal of a caution is governed by Section 73 of the Land Registration Act, 2012. This section provides that removal may be sought from the Registrar or by order of the court with jurisdiction over land matters, namely the Environment and Land Court. The Probate and Administration Court's mandate is limited to administration of estates and does not extend to adjudicating disputes or making orders relating to...
Court Disposition
application dismissed for want of jurisdiction
Orders
- The application dated 15th April 2013 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINISTRATION CAUSE NO.284 OF 2010
1. JAMES MWIMA SIKEDI …………………………..APPLICANTS
2. ALFRED OKUMU SIKEDI
AND
WILLIAM JOSI DIFFU …………………………………..RESPONDENT
29/1/2014
Before: F. Tuiyott J.
Court clerk – Kadenyi
James Mwima Sikedi Applicant present in person
Alfred Okuna Sikesi
APPLICANTS
We pray for the orders in the Application of 15th April 2013.
F. TUIYOTT
J U D G E
R U L I N G
COURT
I am unable to grant the Application of 15th April 2013. The Applicants are holders of a confirmed Grant to the Estate of Gabriel Sikedi Mukupe (Deceased). The Deceased died on 18th November 1996. Some four months after his death, one William Josei Diffu lodged a caution in the Register to L.R. No.Bunyala/Bulemia/2028. That land was and still remains registered in the name of the Deceased.
It is that caution which the Applicants wish that this Court, a Probate and Administration Court, removes through their Application. The procedure for removal of a caution is now provided by Section 73 of The Land Registration Act, 2012. Sections 73 (1) 6(2) provides that,
“(1) a caution may be withdrawn by the cautioner or removed by order of the Court or, subject to subsection (2), by order of The Registrar.
(2) The Registrar, on the Application of any person interested, may serve notice on the cautioner warning the cautioner that the caution will be removed at the expiration of the time state dint he notice.”
The other provisions to Section 73 set out the steps to be taken by the Registrar after issuing the notice.
So one way that the Applicants can seek removal of the caution is by applying for its removal to the Registrar. The other is by moving the Court for such order. But that Court is an Environment and Land Court not a Probate and Administration one.
F. TUIYOTT
J U D G E
29/01/2014