[2023] KEHC 24077 (KLR)

Odero v Nachimo & another (Miscellaneous Application 29B of 1999) [2023] KEHC 24077 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24077 (KLR)

Republic of Kenya

In the High Court at Busia

Miscellaneous Application 29B of 1999

WM Musyoka, J

October 27, 2023

Between

Samwel Odero

Applicant

and

Joshua George Nachimo

1st Respondent

Ogago Ochieno

2nd Respondent

Ruling

1. When this matter came up on October 25, 2023, for mention of an application, dated September 29, 2023, Mr Ashioya, for the applicant, applied to have it withdrawn, with no orders as to costs, on grounds that it had been overtaken by events. Mr Onsongo, for the respondents, did not oppose the withdrawal, as, in his view, the said application was premature and unnecessary, for the applicant should have simply written to the respondents to ask for the documents sought to be availed in the application. He argued that the respondents were entitled to costs. Mr Ashioya countered by saying that the documents ought to have been supplied by consent, but when the respondent declined to do the needful, the application became a necessity, adding that if any party was entitled to costs it ought to be the applicant.

2. I made an order for the withdrawal of the application, and reserved my ruling on costs, to enable me peruse the record. Costs naturally follow the event, unless there exist circumstances which disentitle the other party to the costs.

3. The application, dated September 29, 2023, sought that the respondents show cause why they had refused to avail copies of their national identity cards, passport size photographs and personal identification (PIN) certificates, for the purposes of partition of Samia/Luanda-Mudoma/1279, to enable processing of title deeds for beneficiaries. The alternative prayers were that the Deputy Registrar be mandated to sign partition and mutation forms on behalf of the respondents; and the executive officer of the court be mandated to provide copies of his personal identification documents to facilitate the said partition and processing of title deeds. It was alleged that the respondents had refused to cooperate and had stalled the process, and were holding everybody else at ransom, 11 years after the matter was concluded.

4. The 1st respondent swore the affidavit in response, on October 23, 2023. He averred that the application was unnecessary and a waste of time. He stated that the consent to subdivide the land was filed in court on November 27, 2007, and survey was carried out on May 11, 2023, some 16 years later. He accused the applicant of occasioning the delay, as no one approached him, asking him to sign forms and surrender. He denied that he had refused to cooperate. He said that the copies of the documents sought were always available, and he had left them with his Advocates. He said that it was not necessary to drag the 2nd respondent into the matter, for Hampress Makokha Ojiambo, the son of John Ochieno, had surrendered his documents for that purpose, with their Advocates. He stated that the relevant forms should be forwarded to his Advocates, for him to execute them. He averred that the applicant ought to have written to his Advocates, instead of filing an application. He attached a consent letter, dated October 19, 2007, for the said partition, and a letter dated June 29, 2011, from the District Land Registrar, advising on the need to gazette the cancelled title deeds or to have them surrendered, and payment of the requisite fees. The letter also advised that the parties liaise with the District Surveyor and pay the necessary fees.

5. I was unable to get a coherent history of the matter from the record, the file before me appears to be a reconstruction. From the cover, it would appear that the matter was initiated in 1999, yet the file notes start from August 25, 2017. There is a gap between 1999 and 2017. The documents placed on the record, to reconstruct the file, do not tell a coherent story, as most of them are too vague for legibility. It appears that the instant cause was initiated to have the grant made in Busia P&A No 113 of 1991 revoked. Yet, there are no proceedings on record on how that application was handled, and what its outcome was. It is not clear who the administrators of the estate were, and are, and who was, and still is, under duty to do what, in terms of transmitting the estate, as between the applicant and the respondents. I cannot tell the circumstances which led to the consent of October 19, 2007, nor what informed the letter from the lands office of June 29, 2011. In short, it is difficult to tell, from the record, who was or is to blame for the long delay in the finalization of the matter.

6. In view of the above, it is extremely hard for me to assign fault to any of the parties. The prudent thing to do, in the circumstances, should be to have each party bear its own costs of the withdrawn application, which I hereby order. To move the matter forward, I shall allocate a mention date, for the parties to confirm that transmission of the assets has happened, and the administration has been completed, to facilitate closure of this file. I so order.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS………………27TH………………….DAY OF…………..………OCTOBER………………………... 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Ashioya, instructed by Ashioya & Company, Advocates for the applicant.Mr. Onsongo, instructed by Obwoge Onsongo & Company, Advocates for the respondents.