[2012] KEHC 1915 (KLR)
The court found that the subject matter of the plaintiff's suit—land parcel 301 and its subdivisions—was already the subject of a pending succession cause in which the plaintiff had filed an objection. Any grievances regarding the land, including claims of unlawful transfer or entitlement, should be addressed within...
Source-derived case information.
- Citation
- [2012] KEHC 1915 (KLR)
- Parties
- Plaintiff: Moses Kwoba Sarana; Defendant: Rebecca Namarome Were; Defendant: Meshack Were Sarana; Defendant: Levi Wanyama Wafula
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 67 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Suit
- Outcome
- Suit struck out with costs for being an abuse of the process of the court.
- Judges
- AO Muchelule
- Legal Topics
- Striking Out of Suit, Abuse of Court Process, Pending Succession Cause, Unlawful Land Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Kwoba Sarana
Plaintiff
Rebecca Namarome Were
Defendant
Meshack Were Sarana
Defendant
Levi Wanyama Wafula
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the plaintiff's suit is scandalous, frivolous, vexatious or otherwise an abuse of the process of the court.
- 2 Whether the dispute over the suit land should be determined within the pending succession cause rather than by a separate suit.
- 3 Whether the subdivisions and transfers of the suit land were unlawful and should be cancelled pending the succession cause.
Ratio Decidendi
The court found that the subject matter of the plaintiff's suit—land parcel 301 and its subdivisions—was already the subject of a pending succession cause in which the plaintiff had filed an objection. Any grievances regarding the land, including claims of unlawful transfer or entitlement, should be addressed within that succession cause. Filing a separate civil suit constituted an abuse of the process of the court, as the succession court is competent to determine the beneficiaries and their respective shares, and to grant appropriate remedies. Accordingly, the suit was struck out for being an abuse of process.
Court Disposition
Suit struck out with costs for being an abuse of the process of the court.
Orders
- The plaintiff's suit is struck out with costs to the defendants.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Suit 67 of 2006
MOSES KWOBA SARANA....................…………………………… PLAINTIFF
~VERSUS~
REBECCA NAMAROME WERE………………….………..….1ST DEFENDANT
MESHACK WERE SARANA……...……………………......…2ND DEFENDANT
LEVI WANYAMA WAFULA………...…………………......….3RD DEFENDANT
RULING
This is an application under Order 6 rule 13 (1) (b) and (d) and rule 16 of the Civil Procedure Rules to have the Plaintiff’s suit struck out with costs for being scandalous, frivolous and vexatious, or otherwise being an abuse of the process of the court. The application was brought by the 2nd and 3rd Defendants.
It would appear not to be in dispute that the deceased Were Sarana died on 10/10/1967. He left land parcel East Bukusu/East Sang’alo/301 measuring about 29. 2 acres in his name. His widow Rebecca Namarome Were (1st Defendant) filed a succession cause in H. C. Succession Cause no.112 of 1998 at Bungoma and named the 2nd and 3rd Defendants as some of the beneficiaries of the estate. The Plaintiff herein filed an objection to the making of the grant. He claimed to be the adopted son of the deceased who was entitled to 4 acres of the estate. It is not is dispute that the Cause and the objection are pending.
In the instant case, it was claimed that while the Cause was pending the 1st and 2nd Defendants conspired and transferred the suit land to the 2nd Defendant. The 2nd Defendant subdivided the suit land into East Bukusu/East Sangalo/2758 and 2759 and transferred the later portion to the 3rd Defendant. The Plaintiff occupies the entire land covered by 2759. The suit was brought for a declaration that the subdivisions and transfers were unlawful and ought to be cancelled pending the Cause.
I agree with the 2nd and 3rd Defendants that land parcel 301 and any subsequent subdivisions are subject of the Cause which is pending and any grievance in regard to the parcels should be brought in the Cause. It was an abuse of the process of the court to file the present suit. The court hearing the Cause can injunct any action or recall any alienation of parcel in the matter. The court in the Cause will determine who the beneficiaries of the estate of Were Sarana are and what their respective shares are. If the Plaintiff claims to be a beneficiary he is required to establish the claim in the Cause.
I allow the application and strike out the suit with costs for being an abuse of the process of the court.
Dated, signed and delivered at Bungoma this 2nd day of October, 2012.
A.O. MUCHELULE
JUDGE