[2019] KEELC 3115 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT KISII

CASE NO. 987 OF 2016

(FORMERLY HCC NO. 335’A’ OF 2012)

MARCELLAH NYANGAU OKENYE......................................PLAINTIFF

VERSUS

NAFTAL ONTWEKA.......................................................1ST DEFENDANT

ZAKARIA OBARA MOCHAMA....................................2ND DEFENDANT

EZEKIEL OMBASA OUMA...........................................3RD DEFENDANT

J U D G M E N T

1. The Plaintiff is the widow of Livingstone Okenye Orina (deceased) and instituted the present suit as the adminstrix of her late husband’s estate. The Plaintiff vide the plaint dated 20th August 2012 filed in court on 12th September 2012 averred that her late husband was as at the time of his death the registered proprietor of land parcel South Mugirango/Nyataaro/185. The Plaintiff further stated that in 2009 the 1st Defendant who is her son commenced succession proceedings in regard to her late husband’s estate vide Kisii HC Succession Cause No. 405 of 2009 and obtained temporary letters of administration on 29th September 2009. The 1st Defendant, before the succession proceedings were finalized, registered form R.L 19 against the suit property and caused the suit land to be subdivided into parcels 2217, 2218 and 2219 and transferred land parcel South Mugirango/ Nyataaro/2218 to the 2nd and 3rd Defendants.

2. The Plaintiff filed an application for the annulment and revocation of the grant issued to the 1st Defendant in the succession cause and upon the application for revocation of grant being served on the 1st Defendant, the 1st Defendant withdrew the succession cause. The Plaintiff thus averred the transfer of land parcel South Mugirango/Nyataaro/185 to the 1st Defendant and the consequent subdivision thereof and transfer of land parcel number South Mugirango/Nyataaro/2218 to the 2nd defendant was irregular and illegal and null and void and ought to be cancelled. The Plaintiff prays for judgment against the Defendants for:-

(a) A declaration that the transfer of land parcel then registered as South Mugirango/Nyataaro/185 by the 1st Defendant to himself was irregular and/or improper and/or unlawful and similarly the subdivision of the said land into 3 portions namely South Mugirango/Nyataaro/2217, 2218 and 2219 and subsequent transfer of parcel No. South Mugirango/2218 was also improper and/or unlawful and that all the aforesaid transactions be cancelled and/or annulled.

(b) An order of eviction of the 2nd and 3rd Defendants, their agents and/or servants and/or any person holding on land parcels No. South Mugirnago/Nyataaro/2218.

(c) Costs of the suit.

(d) Any other order this court may deem fit to grant.

3. The 1st Defendant did not enter appearance or file any defence in the suit. The 2nd and 3rd Defendants filed a joint defence dated 16th October 2012. The 2nd and 3rd Defendants denied the allegations set out in the plaint and in particular that land parcel South Mugirango/Nyataaro/185 was part of the estate of Livingstone Okenye Orina (deceased). The 2nd and 3rd Defendants contended that they were the registered proprietors of land parcel South Mugirango/Nyataaro/2218 and that their title was absolute and indefeasible.

4. The 2nd and 3rd Defendants advocate Mr. Ben Gichana of Ben K. Gichana & Company Advocates was granted leave to cease to act for the 2nd and 3rd Defendants on 19th October 2017 and henceforth the said Defendants were served with Court process directly. The suit was fixed for hearing on 25th March 2019. The Defendants were served with the hearing notice as per the affidavit of service filed by Isaiah Miruka a court process server on 25th March 2019. The Court allowed the Plaintiff to proceed with hearing ex parte.

5. The Plaintiff testified as the sole witness in support of her case. Her evidence was brief and she basically relied on the witness statement she had recorded on 20th August 2012. It was her evidence that her late husband was the registered owner of land parcel South Mugirango/Nyataaro/185 before he died. That her son, the 1st Defendant herein in 2009 secretly and unilaterally applied for letters of administration to her late husband’s estate. She stated none of the other beneficiaries were involved and/or consulted and that when the 1st Defendant was issued the temporary grant of letters of administration, he caused the land to be registered in his name which he subdivided and transferred a portion thereof to the 2nd and 3rd Defendants without obtaining confirmation of the grant of letters of administration.

6. The Plaintiff stated that she applied for the grant issued to the 1st Defendant to be annulled but the Defendant upon being served with the application for revocation of the grant, he withdrew the entire succession cause. The Plaintiff stated she had equally filed a bundle of documents which she wished to rely on in support of her case. The Plaintiff’s bundle of documents included the following documents:-

(i) Copy of Certificate of Search for land parcel South Mugirango/ Nyataaro/185 dated 23rd April 2009 which showed the land was registered in the name of L. Okenye Orina.

(ii) Copy of search of land parcel South Mugirango/Nyataaro/2218 dated 6th December 2010 which shows the land was a subdivision of land parcel 185 and was registered in the name of Zakaria Obara Mochama and Ezekiel Ombasa Ouma.

(iii) Searches for land parcels South Mugirango/Nyataaro/2217 and 2219 dated 6th December 2010 which show they were subdivisions from land parcel 185 and are registered in the name of Naftali Ontweka Okenye.

(iv) Copy of Notice by 1st Defendant withdrawing Kisii HC Succession Cause No. 405 of 2009 entirely dated 1st December 2009.

(v) Copy of Grant of Administration Ad Litem issued to the Plaintiff dated 11th July 2012 for the Estate of Livingstone Okenye Orina who died on the 9th February 2001.

7. I have reviewed the evidence and I am satisfied that Livingstone Okenye Orina (deceased) was the registered owner of land parcel South Mugirango/Nyataaro/185 as at the time he died. The copy of Certificate of Search on the property issued on 23rd April 2009 shows that he was registered as owner of the land on 17th January 1970 and issued title on 25th October 1971. There is no evidence that any formal succession proceedings were conducted in regard to the deceased estate. The succession proceedings commenced by the 1st Defendant in regard to the deceased estate vide Kisii HC Succession Cause No. 405 of 2009 were apparently not concluded as the Petitioner withdrew the succession cause in its entirety as per the notice of withdrawal dated 1st December, 2009.

8. There is no evidence that there was a valid grant and certificate of confirmation of grant that would have enabled the estate of the Plaintiff’s husband to be distributed. The Plaintiff has stated that the 1st Defendant did not have a valid grant of letters of administration that would have enabled him to distribute the deceased estate. The 1st Defendant did not challenge the Plaintiff’s evidence and hence the same remained uncontraverted. The Court accepts the Plaintiff’s evidence and holds that there was no valid succession proceedings relating to the estate of Livingstone Okenye Orina (deceased) and therefore any purported distribution of his estate was null and void.

9. The 2nd and 3rd Defendants inspite of filing their defence did not attend court for hearing. The defence filed remained a mere statement of facts which were unproven and/or substantiated. The 2nd and 3rd defendants did not file any witness statement and/or any documents which could perhaps have substantiated the defence they had filed. In the face of the evidence adduced by the Plaintiff the defence tendered by the 2nd and 3rd defendants is not sustainable.

10. In the premises, the Court is satisfied that the Plaintiff has proved her case against the Defendants on a balance of probabilities. The Court enters judgment in favour of the Plaintiff as against the Defendants and makes the following final orders:-

(a) A declaration be and is hereby issued that the transfer of land parcel South Mugirango/Nyataaro/185 to the 1st Defendant and subsequent subdivision thereof into land parcels South Mugirango/Nyataaro/ 2217, 2218 and 2219 was null and void and is hereby ordered cancelled.

(b) The transfer of land parcel South Mugirango/Nyataaro/2218 to the 2nd and 3rd Defendants was null and void and is hereby ordered to be cancelled.

(c) The land registrar, Kisii County is ordered to rectify the register and to restore the name of L. Okenye Orina (deceased) as the owner of land parcel South Mugirango/Nyataaro/185 until appropriate succession proceedings in respect of his estate are undertaken.

(d) All parties to bear their own costs of the suit.

JUDGMENT DATED, SIGNED AND DELIVERED AT KISII THIS 31ST DAY OF MAY 2019.

J. M. MUTUNGI

JUDGE