[2022] KEELC 3917 (KLR)
The court determined that due to inconsistencies and lack of clarity regarding the probate court orders and rulings—specifically, the mismatch between the referenced land parcels and the content of the orders—it would be improper to proceed to judgment. The court found that the interests of substantive justice...
Source-derived case information.
- Citation
- [2022] KEELC 3917 (KLR)
- Parties
- Plaintiff: Joan Ludia Saka; Plaintiff: Dennis Ochieng Saka; Plaintiff: Jasson Wilfred Mumbo Saka; Defendant: Pamela Getrude Otieno; Defendant: Habakuk Onyango Abogno; Defendant: Estate of Abuor Nyaseme alias Ager Nyaseme (Deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 25 of 2021
- Procedural Posture
- Environment and Land Case / Post Hearing, Pre Judgment; Ruling on Procedural Irregularity
- Outcome
- Judgment arrested; further directions to be given after review of probate court records and parties' submissions.
- Judges
- AY Koross
- Legal Topics
- Probate Court Records, Land Parcel Identification, Arrest of Judgment, Confirmation of Grant, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joan Ludia Saka
Plaintiff
Dennis Ochieng Saka
Plaintiff
Jasson Wilfred Mumbo Saka
Plaintiff
Pamela Getrude Otieno
Defendant
Habakuk Onyango Abogno
Defendant
Estate of Abuor Nyaseme alias Ager Nyaseme (Deceased)
Defendant
Procedural Posture
Environment and Land Case / Post Hearing, Pre Judgment; Ruling on Procedural Irregularity
Legal Issues
- 1 Whether the court can proceed to judgment when there is uncertainty regarding the probate court orders and their relation to the suit property.
- 2 Whether the court should call for the full probate court record to clarify the status of the orders and rulings affecting the suit property.
- 3 Whether the parties should address the court on the apparent discrepancy between the probate court order and ruling.
Ratio Decidendi
The court determined that due to inconsistencies and lack of clarity regarding the probate court orders and rulings—specifically, the mismatch between the referenced land parcels and the content of the orders—it would be improper to proceed to judgment. The court found that the interests of substantive justice require a full review of the probate court record to resolve the ambiguity. Accordingly, the court exercised its inherent powers under the Civil Procedure Act to arrest the judgment, call for the relevant probate court records, and direct the parties to address the court on the specific order in question. This approach ensures that the final judgment will be based on a complete and...
Court Disposition
Judgment arrested; further directions to be given after review of probate court records and parties' submissions.
Orders
- Judgment in this matter is arrested pending further directions of the court.
- Parties to address the court on the order dated April 28, 2017 issued in Kisumu Succession Cause no 148 of 1999.
Full Case Text
Judgment text and source record
29 paragraphs
Joan Ludia Saka & 2 others v Pamela Getrude Otieno & 2 others (Environment & Land Case 25 of 2021) [2022] KEELC 3917 (KLR) (19 May 2022) (Ruling)
Neutral citation: [2022] KEELC 3917 (KLR)
Republic of Kenya
In the Environment and Land Court at Siaya
Environment & Land Case 25 of 2021
AY Koross, J
May 19, 2022
Between
Joan Ludia Saka
1st Plaintiff
Dennis Ochieng Saka
2nd Plaintiff
Jasson Wilfred Mumbo Saka
3rd Plaintiff
and
Pamela Getrude Otieno
1st Defendant
Habakuk Onyango Abogno
2nd Defendant
Estate of Abuor Nyaseme alias Ager Nyaseme (Deceased)
3rd Defendant
Ruling
1. This court concluded with the hearing of this suit on January 18, 2022, directed the parties to file written submissions; which they did and reserved the judgment for delivery today. However, the court now finds itself in the unfortunate position in which it has to deliver a ruling instead of a judgment.
2. The turn of events has been occasioned by two reasons which all relate to Kisumu Succession Cause no 148 of 1999 (In the matter of the Estate of Ager Nyaseme Abuor) Joan Ludia Saka & 2 Others vs Getrude Pamela Atieno & 2 Others which to a large extent involves the same parties in this suit and one way or the other may have a bearing on the outcome of this case.
3. One, in the course of the 2nd defendant tendering his oral evidence, he produced a copy of a court order allegedly issued by the probate court dated April 26, 2017. This order refers to Land Parcel Gem/Ramula/205 and not Land Parcel Gem/Ramula/206 [“suit property”] which is the subject of these proceedings. Similarly, the Ruling of the probate court dated November 7, 2016 that he produced refers to the suit property and not Land Parcel Gem/Ramula/205. As it is, this court is uncertain if there was a typographical error in the said Order and it is paramount that the parties address the court on this particular issue.
4. Two, in my considered view, there is no correlation between the said Order and the ruling. While the said Order directed the 2nd defendant in this case to cede one acre of land from Land Parcel Gem/Ramula/205 to some of the plaintiffs in this case, the ruling on the other hand revoked the Summons for Confirmation of Grant in respect of the estate of Ager Nyaseme Abuor (deceased) and directed the 1st defendant to account for the proceeds of sale of the suit property. It would appear the orders that emanated from this ruling were never extracted.
5. In the circumstances and bearing in mind that this court has to carry out substantive justice in rendering its decision, I find that it is imperative that the entire court record and proceedings of the probate court be called for to this court and in exercise of its powers under sections 1A, 1B 1(a) and 3A of the Civil Procedure Act, I issue the following disposal orders–a.That judgment in this matter be and is hereby arrested pending further directions of this court.b.The parties do address the court on the order dated April 28, 2017 and issued in Kisumu Succession Cause no 148 of 1999 [In the matter of the Estate of Ager Nyaseme Abuor (deceased)]c.That the entire proceedings and court records of Kisumu Succession Cause no 148 of 1999 [In the matter of the Estate of Ager Nyaseme Abuor (deceased)] be called for to this court.d.That the matter be mentioned for directions on July 18, 2022. e.That there shall be no orders as to costs.
It is so ordered.
Ruling delivered virtually.DATED, SIGNED AND DELIVERED AT SIAYA THIS 19TH DAY OF MAY 2022. In the Presence of:M/s Otieno for the plaintiffN/A for defendantCourt assistant: Olivia NyumbaHON A Y KOROSSJUDGE19/5/2022