[2016] KEHC 1929 (KLR)
The court held that the respondent's refusal to cooperate with the court-ordered survey and subdivision of the estate was unjustified and amounted to an attempt to frustrate the administration of justice. The court emphasized that parties must comply with court orders and cannot dictate the manner in which judicial...
Source-derived case information.
- Citation
- [2016] KEHC 1929 (KLR)
- Parties
- Applicant: Josiah Kiche Mosi; Respondent: David Ngoto Mosi
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 18 of 2015
- Procedural Posture
- Succession Cause / Ruling on Review and Enforcement of Prior Distribution Orders
- Outcome
- Application for review or stay dismissed; enforcement of prior subdivision orders reaffirmed.
- Legal Topics
- Intestate Succession, Customary Law Inheritance, Land Subdivision, Enforcement of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josiah Kiche Mosi
Applicant
David Ngoto Mosi
Respondent
Procedural Posture
Succession Cause / Ruling on Review and Enforcement of Prior Distribution Orders
Legal Issues
- 1 Whether the respondent can frustrate court-ordered land subdivision by refusing to cooperate with the survey process.
- 2 Whether the court should review or stay its earlier orders regarding distribution of the deceased's estate based on the surveyor's report.
- 3 How to enforce compliance with court orders for subdivision and distribution of land among beneficiaries.
Ratio Decidendi
The court held that the respondent's refusal to cooperate with the court-ordered survey and subdivision of the estate was unjustified and amounted to an attempt to frustrate the administration of justice. The court emphasized that parties must comply with court orders and cannot dictate the manner in which judicial processes are conducted. The judge reaffirmed the earlier orders for subdivision, directed that the survey be completed with police protection if necessary, and made clear that the absence or non-cooperation of the respondent would not prevent the process from proceeding. The court also rejected the respondent's application for review or stay, finding no sufficient basis to...
Court Disposition
Application for review or stay dismissed; enforcement of prior subdivision orders reaffirmed.
Orders
- The Assistant County Commissioner of North Rachuonyo Sub County is to provide comprehensive security to the District Surveyor to conduct the survey in the absence of the respondent or his agents.
- Police presence is to be provided throughout the survey exercise.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
SUCCESSION CAUSE NO.18 OF 2015
FORMERLY OYUGIS SUCCESSION CAUSE NO.128 OF 2008
BETWEEN
IN THE MATTER OF THE ESTATE OF:
DAUDI MOSI NGOTO ........................................................... DECEASED
AND
JOSIAH KICHE MOSI .......................................................... APPLICANT
VERSUS
DAVID NGOTO MOSI ..................................................... RESPONDENT
RULING
1. When DAUDI MOSI NGOTO (the deceased) died intestate on 20th June, 1986, his son JOSIAH KICHE MOSI filed a summons for issuance of letters of administration and distribution of the deceased’s estate. The application was however opposed by another son named DAVID NGOTO MOSI. JOSIAH wanted to inherit both C/KARACHUONYO/KONYANGO/1088and 1090as the last born son citing such rights derived from Luo Customs.
2. The court in its ruling dated 12th February 2016 held that the deceased intended his last born son to inherit parcel No.1088k measuring 1. 4 hectares where his homestead stood. Further that parcel No.1090 was not intended exclusively for JOSIAH KICHE, and it therefore formed part of the deceased’s free property. However the judge noted that the deceased’s other sons had built their homesteads on No.1088.
3. The judge therefore directed that the County surveyor, with the assistance of the Assistant County Commander of North Rachuonyo Sub County, to visit the said parcels, identify and subdivide the same to each beneficiary except for the deceased’s homestead and land cultivated by the deceased which were to accrue exclusively to JOSIAH KICHE MOSI. The sub division was required to be done within 90 days, and thereafter a report was to be filed in court. The costs of the sub division was to be shared by the beneficiaries equally.
4. However when the matter next came up on 30th June 2016, it was apparent that the surveyor could not complete the subdivision with regard to parcel No.1088 sub division.
5. On 14th July 2016 Mr. Ochieng who held brief for Mr. Onyango for the Respondent asked the court to review the ruling by Majanja J. dated 12th February 2016 on the basis of a report by the District Surveyor dated 4th May 2016 but this was opposed.
6. The problem in No.1088 is that each brother has fenced a portion of it and is not willing to cede any area. The surveyor once again attempted a survey in the presence of all the affected parties, but DAVID NGOTO walked away – probably still unhappy with what the surveyor had embarked on. Infact this time round, partial survey was done on No.1088, but trouble arose when the surveyor got to the portion occupied by David Ngoto Mosi – instead of even awaiting the outcome of the survey, he called his witnesses and advocate and walked away – surely the most logical and reasonable thing was to await the outcome of the survey and make known his displeasure once the report is filed. He cannot frustrate the court’s efforts at trying to resolve the stalemates and expect to come and obtain a stay – just so that matters move in the manner he desires. Court orders must be obeyed, and it will be setting a very dangerous precedent to allow the respondent to dictate to the court how matters should be conducted – surely if he does not agree with the interpretation of the surveyors how will the court know what the survey has found without completion of the exercise and a report being filed?
7. I now direct that the Assistant County Commission of North Rachuonyo Sub County to give comprehensive security to the District Surveyor to conduct the survey and in the absence of the Respondent and/or his servants, agents or proxy. There shall be appropriated police presence during the entire exercise and the surveyor do file his report within 21 days. Copy of the order be served on Sub County Commission North Rachuonyo Sub County.
Delivered and dated this 15thday of September, 2016 at Homa Bay.
H.A. OMONDI
JUDGE.