[2024] KEHC 2238 (KLR)
The High Court found that the trial magistrate erred by failing to address the issue of locus standi and by treating the respondents' capacity as a mere technicality. The preliminary objection regarding jurisdiction and capacity should have been determined before revoking the grant. Furthermore, the succession court...
Source-derived case information.
- Citation
- [2024] KEHC 2238 (KLR)
- Parties
- Appellant: Martin Onyango Omiti; Appellant: Jackens Omondi Omiti; Respondent: Zibia Anyango Okello; Respondent: Carren Apondi Noah; Respondent: Wilkister Anyango
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E029 of 2022
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- KW Kiarie
- Legal Topics
- Succession Proceedings, Locus Standi, Jurisdiction of Court, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Onyango Omiti
Appellant
Jackens Omondi Omiti
Appellant
Zibia Anyango Okello
Respondent
Carren Apondi Noah
Respondent
Wilkister Anyango
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in determining the application without confirming service to the 2nd appellant, violating fair hearing principles.
- 2 Whether the trial court failed to address the issue of jurisdiction and locus standi appropriately.
- 3 Whether the trial court applied the relevant provisions of the Law of Succession Act in revoking the grant.
Ratio Decidendi
The High Court found that the trial magistrate erred by failing to address the issue of locus standi and by treating the respondents' capacity as a mere technicality. The preliminary objection regarding jurisdiction and capacity should have been determined before revoking the grant. Furthermore, the succession court lacked jurisdiction to determine issues of title to land, which should have been referred to the Environment and Land Court. Consequently, the magistrate misdirected herself in allowing the application to revoke the grant, and the appeal was allowed with costs to the appellants.
Court Disposition
appeal allowed
Orders
- The appeal is allowed with costs to the appellants.
- The ruling and order of the trial magistrate revoking the grant is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
Omiti & another v Okello & 2 others (Civil Appeal E029 of 2022) [2024] KEHC 2238 (KLR) (6 March 2024) (Judgment)
Neutral citation: [2024] KEHC 2238 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Civil Appeal E029 of 2022
KW Kiarie, J
March 6, 2024
Between
Martin Onyango Omiti
1st Appellant
Jackens Omondi Omiti
2nd Appellant
and
Zibia Anyango Okello
1st Respondent
Carren Apondi Noah
2nd Respondent
Wilkister Anyango
3rd Respondent
(Being an Appeal from the ruling and order in Oyugis Principal Magistrate’s Succession Cause No.283 of 2020 by Hon. C. Okore –Principal Magistrate)
Judgment
1. On June 2nd, 2022, Hon. Celesa Okore granted an application filed on January 24th, 2022. The effect of the court's decision was to cancel the previously confirmed grant. The applicants argued that the deceased held the land in trust for his siblings. The appellants were not satisfied with this ruling and filed an appeal. They were represented by Abidha & Company Advocates. The grounds on which their appeal was premised were:a.That the learned magistrate erred in law and, in fact, in determining the application dated 24th day of January 2022 suo moto and without confirming whether the 2nd appellant was served or not, thereby violating the principles of fair hearing under article 50(1) of the constitution 2010b.That the learned magistrate erred in law and fact in ignoring the issue of jurisdiction raised in the notice of Preliminary Objection dated the 11th day of April 2022 on the basis that the same was a mere procedural technicality.c.That the learned magistrate failed to determine the issue of the respondent's capacities and merely considered the same as a technicality notwithstanding the precedents of the High Court and the Court of Appeal.d.That the learned magistrate erred by allowing the application dated the 24th day of January 2022 without applying the relevant provisions of the law of Succession Act, noting the glaring admissions of the respondents that they were neither dependents nor beneficiaries in the estate of the late John Omiti.
2. Kisaka & Associates Advocates represented the respondents. They argued that the grounds of appeal were not adequately substantiated.
3. This Court is the first appellate court. I know my duty to evaluate all the evidence on record, bearing in mind that I had no advantage of seeing the witnesses testify and watching their demeanour. I will be guided by the pronouncements in the case of Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its conclusions in the matter.
4. When an issue of locus standi has been raised, the trial court must address it and find whether the parties have the requisite capacity to urge the case. It was erroneous for the learned magistrate to dismiss the claim of the respondents' capacity as a mere technicality. The preliminary objection ought to have been heard before revoking the grant.
5. The respondents may have a good claim prima facie. However, this claim should have been taken to the Environment and Land Court with the requisite jurisdiction for determination. A succession court can only deal with matters of inheritance, not title to land.
6. I, therefore, find that the learned magistrate misdirected herself in allowing the application. The appeal is allowed with costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 6THDAY OF MARCH 2024KIARIE WAWERU KIARIEJUDGE