[2024] KEHC 14851 (KLR)
The High Court found that the objector and interested party had provided credible evidence of purchase and occupation of the suit property from the deceased, establishing their status as beneficiaries for value. The appellant had confirmed their occupation and failed to controvert the evidence of purchase. The court...
Source-derived case information.
- Citation
- [2024] KEHC 14851 (KLR)
- Parties
- Appellant: Dorothy Achieng Ojwang; Respondent: Margaret Anyango Owino; Interested Party: Nicholas Onyango Odongo
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 55 of 2023
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- A. Ong’injo
- Legal Topics
- Succession of Estates, Purchaser Interest in Estate, Distribution of Land, Liabilities of Estate
- 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
Dorothy Achieng Ojwang
Appellant
Margaret Anyango Owino
Respondent
Nicholas Onyango Odongo
Interested Party
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the objector and interested party, as purchasers from the deceased, should be treated as liabilities of the estate during distribution.
- 2 Whether the trial magistrate erred in law and fact in finding the respondent had proved ownership and was a liability to the estate.
- 3 Whether a claim for right to ownership of land can be determined in a succession cause rather than the Environment and Land Court.
Ratio Decidendi
The High Court found that the objector and interested party had provided credible evidence of purchase and occupation of the suit property from the deceased, establishing their status as beneficiaries for value. The appellant had confirmed their occupation and failed to controvert the evidence of purchase. The court held that such purchasers for value are to be treated as liabilities of the estate, and their interests must be recognized in the distribution of the estate property. The trial magistrate's orders for the transfer of the relevant portions to the objector and interested party were therefore proper. The appeal lacked merit and was dismissed, upholding the trial court's judgment.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The judgment of the trial magistrate is upheld.
Full Case Text
Judgment text and source record
28 paragraphs
Ojwang v Owino; Odongo (Interested Party) (Civil Appeal 55 of 2023) [2024] KEHC 14851 (KLR) (14 November 2024) (Judgment)
Neutral citation: [2024] KEHC 14851 (KLR)
Republic of Kenya
In the High Court at Migori
Civil Appeal 55 of 2023
A. Ong’injo, J
November 14, 2024
Between
Dorothy Achieng Ojwang
Appellant
and
Margaret Anyango Owino
Objector
and
Nicholas Onyango Odongo
Interested Party
((Being an Appeal against the whole Judgment of the Chief Magistrate’s Court at Migori (Hon. D. Onyango (CM) dated 17{{^th}} January, 2022 in CMCC No. 135 of 2018))
Judgment
. 1. This is an Appeal from the Judgment of Hon. D. Odhiambo (CM) in Migori CMC Succession Cause No. 135 of 2018 in the estate of Elizaphan Otondo Ombero which comprised of parcels of L. R. Suna East / Wasweta 1 / 3191 and 7152.
2. The trial magistrate found that the Objector’s and Interested Party’s interest as purchaser from the deceased ought to have been taken into account by the Petitioners as liabilities of the estate and the time of distribution.
3. The trial Magistrate distributed LR Suna East / Wasweta 1 / 3191 to Margret Anyango Owino 0. 12Ha and Nicholas Onyango Odongo 50 x 100ft. The remainder to be registered in the name of the Petitioners.
4. The Petitioner was ordered to sign the necessary documents for the successful registration of portions of LR Suna East / Wasweta 1 / 3191in favour of the objector and interested party within 30 days.
5. The Appellants memorandum of appeal dated 1. 1.2022 was premised on the following grounds: -a.That the learned Trial Magistrate erred in law and in fact in holding that the Respondent had proved ownership and was in fact a liability to the estate of the deceased despite overwhelming uncontradicted and material placed before the court.b.That the learned Trial magistrate erred in law and fact when he allow ed the Respondents prayer and dismissed the Appellants submissions which was to the effect that a claim for right to ownership of land can only be brought and /or enlisted in the ELC and not in a succession cause as was done on the Respondent.c.That the learned trial Magistrate erred in law and in fact by failing to put into consideration the evidence adduced before him and therefore arriving at a wrong conclusion that eth Respondent is a liability to the estate and from the ordering that the Appellant do prepare transfer documents for the suit property failure to which the court would take action.d.That the learned trial magistrate erred in law and fact by failing to consider the magnitude of the issues involved and/or appreciating the evidence placed before the court thereby reaching a decision that is unsustainable in law.
6. The Appellant prayed that the appeal be allowed with costs. He sought the judgment be set aside. Directions were taken that the appeal be heard by way of written submissions on 23. 7.2024.
7. The Appellant filed submissions dated 16. 8.2924 whereas the Respondent filed submissions dated 5th November 2024.
8. This court has considered the grounds of appeal, the evidence on record in the trial court the judgment of the trial Magistrate and the submissions by respective parties and finding found by the trial magistrate that there was credible evidence that the objector and interested party were beneficiaries in the estate of the deceased for value. They did not only purchase but also took occupation of the portions sold to them by the deceased.
9. The Petitioner / Appellant having confirmed that the Respondents were in occupation of the portions forming part of the estate of the deceased and having failed to controvert evidence that they purchased from the deceased this court finds no reason to unsettle, the findings of the trial magistrate. The Appeal lacks merit and is dismissed.
Delivered dated and signed at Migori this 14th day of November, 2024. ……………………………..A. ONG’INJOJUDGEIn the presence of: