[2014] KEHC 6737 (KLR)
The court found that the pleadings alone were insufficient to determine the substantive issues in dispute, particularly regarding the status of the suit land and the applicant's entitlement. Oral evidence from the parties is necessary to resolve the factual disputes. To preserve the subject matter of the suit and...
Source-derived case information.
- Citation
- [2014] KEHC 6737 (KLR)
- Parties
- Applicant: Camulus Mukolwe Sikoyo; Respondent: Mario Wangachi Sikoyo; Objector: Patrick P. Machiba
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 366 of 1993
- Procedural Posture
- Succession Cause / Interlocutory Application for Inhibition and Cancellation of Grant
- Outcome
- Interlocutory order granted in part; inhibition issued pending full hearing.
- Judges
- SJ Chitembwe
- Legal Topics
- Inhibition Orders, Confirmation of Grant, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Camulus Mukolwe Sikoyo
Applicant
Mario Wangachi Sikoyo
Respondent
Patrick P. Machiba
Objector
Procedural Posture
Succession Cause / Interlocutory Application for Inhibition and Cancellation of Grant
Legal Issues
- 1 Whether an order of inhibition should be granted to preserve the suit land pending determination of the main suit.
- 2 Whether the confirmed grant issued on 19/1/1995 should be cancelled and the land revert to the deceased's name.
Ratio Decidendi
The court found that the pleadings alone were insufficient to determine the substantive issues in dispute, particularly regarding the status of the suit land and the applicant's entitlement. Oral evidence from the parties is necessary to resolve the factual disputes. To preserve the subject matter of the suit and prevent possible alienation or wastage, the court granted the prayer for inhibition over the suit land pending the hearing and determination of the main suit. The prayer for cancellation of the confirmed grant was not determined at this stage, as it requires full hearing and evidence.
Court Disposition
Interlocutory order granted in part; inhibition issued pending full hearing.
Orders
- Prayer for inhibition over plot number S.WANGA/BUCHIFI/249 is granted pending hearing and determination of the suit.
- Costs shall follow the outcome of the main suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KAKAMEGA
SUCCESSION CAUSE NO: 366 OF 1993
IN THE MATTER OF THE ESTATE OF MAJINA SIKOYO...........DECEASED
AND
MARIO WANGACHI SIKOYO..................PETITIONER
VERSUS
PATRICK P. MACHIBA.............................OBJECTOR
VERSUS
CAMULUS MUKOLWE SIKOYO.................APPLICANT
R U L I N G
The application dated 5/5/2010 seeks an order of inhibition in relation to plot number S.WANGA/BUCHIFI/249. The application also seeks to cancel the confirmed grant issued on 19/1/1995 and the land reverts to the names of the deceased. The application is supported by the affidavit of Camulus Mukolwe Sikoyo.
The respondent filed a replying affidavit sworn on 13/4/2012. Counsel for the respondent filed written submissions while the applicant counsel relied on the application. I have gone through the pleadings herein, it is clear that whereas the applicant are of the view that the suit land measuring 41 acres is family land, the respondent is of the view that the applicant was given his own land.
The land was registered in the names of the respondent’s father.
From the pleadings herein, it is not possible to determine the application fully without taking oral evidence from the parties. The applicant contends that he was using a portion of the suit land and has now been stopped. Oral evidence has to be taken on the entire dispute before the court can make an informed decision.
In order to preserve the suit land, I do grant prayers two (2) of the application dated 5/5/2010 pending the hearing and determination of the entire suit. Costs shall follow the outcome of the main suit. This being an old matter, the registry is directed to list the matter on three convenient consecutive days.
Dated, signed and Delivered at Kakamega this 27th day of February 2014.
SAID J. CHITEMBWE
JUDGE