[2022] KEHC 2435 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

MISC. CIVIL APPLICATION NO. E087 OF 2021

JARED ODHIAMBO AIM...............................................................1ST APPELLANT

RONALD REAGAN ODHIAMBO.................................................2ND APPELLANT

JOHN OKOTH NUNDA.................................................................3RD APPELLANT

MARK ARODUI MADUK..............................................................4TH APPELLANT

CASHETH AIKO OKIWI................................................................5TH APPELLANT

-VERSUS-

JOHN OPANDE ONGARO......................................................................RESPONDENT

RULING

The application before me was brought by the Appellants. It is an application seeking the following reliefs;

“1) THAT the Honourable Court, having revoked

the Grant which had been fraudulently

obtained by the Respondent, be pleased to

issue the necessary consequential order to

the Land Registrar, Nyando Sub-County, to

demand the surrender of and cancellation

of the Title Deed issued in respect of the

subject property L.R. NO. KISUMU/BORDER/

697, on 5th September 2017.

2) THAT the Honourable Court, in view

of the Revocation of Grant, be pleased

to issue an order for the restoration

and reversion into the names of the

deceased Dominicus Ongaro Obap alias

Ongaro Opap, the above suit property.

3) THAT the Honourable Court be pleased to

issue an Order of permanent injunction

restraining the purported absolute owner

of the subject property, one John Okoth

Mbeke, by himself, his servants, agents

or kin from encroaching on, or entering

the suit land.

4) THAT the Honourable Court be pleased to

issue a declaration that circumstances

of this case appear to the court to require

that the grant of Letter of Administration

be made to the Public Trustee and

Administrator – General as the persons

who would in the ordinary course be

legally entitled to administer the

estate of the deceased in attempts

to intermeddle with the estate, thereby

necessitating the revocation of the

grant.

5) THAT the Honourable Court be pleased

to make a declaration that it has the

requisite jurisdiction to issue such

consequential orders as prayed.

6) THAT the cost of this Application be

provided for.”

1. When canvassing the application, the Applicants stated, first, that they were seeking the interpretation of the Judgment which I delivered in JARED ODHIAMBO AIM & 4 OTHERS Vs JOHN OPANDE ONGARA, HIGH COURT CIVIL APPEAL NO. 123 OF 2019.

2. The Applicants deem it necessary that this Court should issue consequential orders, which would lead to the surrender of the original title document, (which is in the hands of the Respondent), so that it may be cancelled by the Land Registrar, Nyando Sub-County.

3. It is clear, as expounded by the Applicants, that “Legal Interpretation”is generally understood to mean a rational activity that gives meaning to a legal text.

4. The Applicants’ position was that the Orders made in the judgment are quite clear. If the orders are as clear as stated by the Applicants, there would be absolutely no need to have them interpreted.

5. However, the Applicants said that the action and the utterances of the Respondent were a reflection of the lack of understanding on the part of the Respondent, about the full implications of the judgment.

6. For that reason, the Applicants submitted that;

“In order to ensure an orderly

implementation of the said

Judgment, the Appellants

instructed their lawyer to seek

interpretation of the said

Judgement.”

7. The Respondent has sworn a replying affidavit, indicating that the land which was the subject matter of the application herein, had been sold and transferred to a third party in 2017.

8. Annexed to the replying affidavit is a copy of a Title Deed for L.R. NO. KISUMU/BORDER/697, which shows that on 5th September 2017, JOHN OKOTH MBEKEbecame the registered proprietor of that property.

9. In my considered view, whether or not the acquisition of title by the said John Okoth Mbeke was invalid, the matter cannot be resolved through the process of the interpretation of the Judgment already rendered.

10. The Applicant is alive to the fact that this Court did already address the issue concerning the proper forum for determining the validity of the sale transaction which resulted in the transmission of ownership to John Okoth Mbeke (“the purchaser”). This is how the Applicants captured it in their submissions;

“This matter was addressed by Your

Lordshhip in the Civil Appeal No. 123

of 2019, where your Lordship pointed

out that the succession cause is not

the proper forum for determining

whether or not any of the alleged sales

(to the Appellants) were valid ………

‘……. that is exactly what I understood

the Appellants to have done; even

though their claims had not yet been

determined by the appropriate court.”

11. Accordingly, I reiterate that this Court is not the proper forum at which the title deed issued to the purchaser can be cancelled. I so hold because before the Court could make an order for cancellation of that title deed, the Court would first have to determine the validity or otherwise of the title deed.

12. In any event, I find that the pursuit of consequential orders herein is way beyond the scope of the alleged “interpretation”of the orders already given in the Judgment. In a manner of speaking, the Applicants were asking the Court to give consideration to matters which had not yet been addressed.

13. The Court became functus officioimmediately it delivered the Judgment. If an error or an omission was made, the Applicants ought to have, (in my considered opinion), either lodged an appeal or sought a review.

14. The Applicants asserted that this Court has jurisdiction to order that the distribution of the estate of the deceased, including handing over the suit property, should be handled by the Public Trustee.

15. First, it must be emphasized that it was only within a Succession Cause that the Court would have jurisdiction to make orders for distribution of the estate. Such orders are made at the stage when the Court was granting the Confirmation of Grant.

16. The application before me is not a Succession Cause, and therefore the Court cannot make orders in this application, which could have the effect of distributing the estate.

17. Secondly, it is only the “Free Property”of a deceased person that may be the subject of distribution. Therefore, as the property which is the subject matter of this application is in the name of a third party, currently, the Court could not presume that the said property was available for distribution.

18. Finally, I hold the considered view that a party ought not to be permitted to institute separate proceedings, for use in seeking “consequential orders”arising from a judgment rendered in an earlier case.

19. If the Applicants were genuinely desirous of seeking consequential orders, they ought to have done so within the case in which the Court had made a determination.

20. I find that the application before me is incompetent. I also find that it lacks merit. Therefore, the application dated 4th May 2021 is dismissed, with costs to the Respondent.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 10TH DAY OF FEBRUARY 2022

FRED A. OCHIENG

JUDGE