[2014] KEHC 6712 (KLR)
The court found that the applicant, Juma Mutsoli Bakari, had established his entitlement to two acres of land based on a valid sale agreement with the deceased, supported by a court consent order and subsequent agreements with the deceased's son, Isaac Watitwa Otembo. The evidence showed that the applicant paid the...
Source-derived case information.
- Citation
- [2014] KEHC 6712 (KLR)
- Parties
- Applicant: Juma Mutsoli Bakari; Respondent: Adija Mutoto Marembe; Respondent: Isaac Watitwa Otembo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Citation Cause 556 of 2009
- Procedural Posture
- Citation Cause / Judgment
- Outcome
- Applicant entitled to two acres; grant of letters of administration issued to all parties; costs to be borne individually.
- Judges
- SJ Chitembwe
- Legal Topics
- Land Sale Agreements, Probate and Administration, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Juma Mutsoli Bakari
Applicant
Adija Mutoto Marembe
Respondent
Isaac Watitwa Otembo
Respondent
Procedural Posture
Citation Cause / Judgment
Legal Issues
- 1 Whether the citor is entitled to two acres or one and a half acres of land from the estate of the deceased.
- 2 Whether the citor has a valid claim based on previous court orders and agreements for the purchase of land from the deceased.
Ratio Decidendi
The court found that the applicant, Juma Mutsoli Bakari, had established his entitlement to two acres of land based on a valid sale agreement with the deceased, supported by a court consent order and subsequent agreements with the deceased's son, Isaac Watitwa Otembo. The evidence showed that the applicant paid the full purchase price and that the deceased acknowledged receipt. The court rejected the respondent's contention that the applicant was only entitled to a lesser portion, noting that the applicant's occupation of less than two acres did not negate his legal entitlement. The court ordered that the applicant be allocated two acres from the estate and that the remainder of the land...
Court Disposition
Applicant entitled to two acres; grant of letters of administration issued to all parties; costs to be borne individually.
Orders
- Juma Mutsoli Bakari to receive two acres out of plot number N. WANGA/MAYONI/915.
- Adija Mutoto Murembe and Isaac Watitwa Otembo to distribute the remainder of the land as per their own agreement.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
CITATION CAUSE NO 556 OF 2009
IN THE MATTER OF THE ESTATE OF OTEMBO NJWARA.........DECEASED
AND
JUMA MUTSOLI BAKARI......................................................PETITIONER
VERSUS
ADIJA MUTOTO MAREMBE....................................................OBJECTOR
JUDGEMENT
The late Julius Otembo Njwaya died on 18/5/1988. Juma Mutsoli Bakari filed this citation calling upon the two citees to take up letters of administration. The deceased left plot numbers N/WANGA/MAYONI/915. Isaac is the deceased’s son while Adija Mutoto is the deceased’s widow. The citor’s claim is that he bought two (2) acres by land from the deceased.
This matter proceeded by way of oral evidence the citor’s evidence is that he bought two acres of land from the deceased in 1974. He has since been living on the land. The surveyor visited the land and was giving him a portion that is less than two acres. It is the citor’s evidence that Isaac moved the boundary.
The citor further testified that he filed Kakamega RMCC 186 of 1977 and he was awarded two acres by the court. PW2, OMAR OSUNDWA OKANGA testified that on 11/3/2007 Isaac alias Patrick Watitwa called him to his home for a meeting. Isaac agreed to give the citor two acres of land provided that the citor meets the costs. A document was signed by the parties. The surveyor tried to give the citor 1 ½ acres instead of two acres.
ISAAC WATITWA OTEMBO testified as DW1. His evidence is that the deceased was his father. He died in 1988. He concedes that his late father gave the citor land in 1072. Boundaries were placed on the ground. The citor moved the boundary in 2011 and the area assistant chief was informed. He is willing to give him the portion that was given out by his late father.
The court visited the land in dispute. The only issue for determination is whether the citor is entitled to two (2) acres or (1 ½) one and a half acre of land. The courts made an order that a surveyor visits the land and demarcate the portion occupied by each party. The surveyor’s report shows that the citor is occupying 1. 38 acres. The citor objects to that finding.
The evidence on record shows that the citor filed civil suit number 186 of 1977 before the Kakamega Resident Magistrate. The suit was between the citor and the deceased herein. On 25/10/1997 parties appeared before the court and recorded consent: The consent reads as follows:-
“By consent the plaintiff to receive 2 acres, of the land No. N/WANGA/MAYONI/60 from the defendant which had been bought by the said plaintiff and had not been transferred in the plaintiff’s name. The price of the land was agreed at Ksh 800/- out of which Kh 700/- had already been paid and the balance of Ksh 100/- will be paid at the end of October, 1977 at home”
According to the proceedings of that case, the deceased was paid the balance of the purchase price on 5/12/1977 in court and he did acknowledge receipt.
The citor also produced an agreement made on 20/8/2009 between himself and Isaac Watitwa whereby Isaac agreed to give him two acres of land. The agreement indicate that no other expenses were to be made, PW2 produced another document dated 17/3/2007 whereby Isaac agreed to give the citor two acres of land.
From the evidence on record, I am satisfied that the citor bought two acres of land from the deceased. Although the citor might be occupying less than two acres, he is entitled to two acres of land. The deceased consented in court to give the citor two acres of land. The deceased was paid for two acres of land. Even the cite, Isaac agreed to give the citor two acres of land and his contention that he did not sign the documents dated 17/3/2007 cannot be true. His identity card number is on the document. The citor is an elderly man who seems not to be literate and could not forge the document.
In the end, I do find that the citor is entitled to two (2) acres of land out of plot number N. WANGA/MAYONI/915. A grant of letters of administration to be issued to the citor, JUMA MUTSOLI BAKARI, ISAAC WATITWA OTEMBO and ADIJA MUTOTO MUREMBE as follows:
PLOT N. WANGA/MAYONI/915
JUMA MUTSOLI BAKARI 2 ACRES
ADIJA MUTOTO MUREMBE The remainder to distribute as per their own agreement
ISAAC WATITWA OTEMBO
I do order that each party meet his/her own costs.
Dated, signed and Delivered at Kakamega this 27th day of February 2014.
SAID J. CHITEMBWE
JUDGE