[2006] KEHC 2594 (KLR)
The court held that the registration of the suit plots, not being first registrations, can be lawfully challenged in court. The plaintiff, having obtained a grant of letters of administration, has locus standi to sue on behalf of the estate, though this does not automatically confer a substantive right over the...
Source-derived case information.
- Citation
- [2006] KEHC 2594 (KLR)
- Parties
- Plaintiff: Pastina Wamalwa Simiyu; Defendant: Stephen Wekesa; Defendant: Silas Wanyonyi; Defendant: Roberty Miruni; Defendant: James Alwenyi Idachi
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 142 of 2005
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; eviction order remains enforceable
- Legal Topics
- Locus Standi, Preliminary Objection, Eviction Orders, First Registration, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pastina Wamalwa Simiyu
Plaintiff
Stephen Wekesa
Defendant
Silas Wanyonyi
Defendant
Roberty Miruni
Defendant
James Alwenyi Idachi
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the registration of the suit plots can be challenged in court despite not being first registrations.
- 2 Whether the plaintiff has locus standi to sue on behalf of the estate of her late husband.
- 3 Whether the preliminary objection is the proper procedure to resolve the disputed issues in the matter.
Ratio Decidendi
The court held that the registration of the suit plots, not being first registrations, can be lawfully challenged in court. The plaintiff, having obtained a grant of letters of administration, has locus standi to sue on behalf of the estate, though this does not automatically confer a substantive right over the property, which remains a matter for evidence. The issues raised are disputed and require a full hearing with evidence, making a preliminary objection an inappropriate procedure for their resolution. Consequently, the preliminary objection was dismissed. However, the court affirmed that the eviction order issued earlier remains valid and enforceable, as it has not been set aside.
Court Disposition
preliminary objection dismissed; eviction order remains enforceable
Orders
- The preliminary objection dated 11/11/2005 is dismissed with costs in the cause.
- The eviction order issued on 20/6/2005 remains valid and enforceable.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE
Civil Suit 142 of 2005
PASTINA WAMALWA SIMIYU …………...........…………………………….. PLAINTIFF.
VERSUS
STEPHEN WEKESA
SILAS WANYONYI
ROBERTY MIRUNI ……………….......................……………………….. DEFENDANTS.
JAMES ALWENYI IDACHI
R U L I N G.
I have considered the Preliminary objection raised by Mr. Onditi on behalf of the Respondents in the application dated 27/10/2005. I have considered the arguments advance by both counsel and the annexures herein and the cited authorities.
First and foremost, the Registration of plot Nos. KAKAMEGA/KONGONI/1023, 1025 and 1026 is not a first Registration. Those plots had been sub-divided from original Title No. KAKAMEGA/KONGONI/197, which had been registered in the name of the plaintiff/applicant’s wife. These Titles can therefore be lawfully challenged in a court of law. Whether there was fraud or not would be a question of evidence which would be subjected to the usual burden of proof.
I have also seen the annexed copy of a Grant of letters of administration giving the plaintiff the locus standi to sue on behalf of the Estate of her late husband. She is therefore properly before the court. Locus standi does not necessary mean that she has a right recogniseable in law over the said property. That again is a matter of evidence. In other words, there are serious disputed or arguable issues in this matter, which can only be resolved by way of calling evidence. A preliminary objection is not therefore the best way to resolve this matter. Let the parties have their day in court. Let them have a chance to ventilate their claims. Whether their claim is good or bad in law will ultimately be decided after the case is heard. In the result, I dismiss the preliminary objection dated 11/11/2005 with costs in the cause.
Nonetheless, I have seen the eviction order issued by this court on 20/6/2005. That eviction order is still a valid order of this court. The same has not been set aside either by this court or by an appellate court. The same is therefore still enforceable. The plaintiff in Civil Suit No. 71 of 2001 is at liberty to proceed with the execution of the same. That plot will not be affected by the pendency of the application dated 27/10/2005, which is yet to be heard.
W. KARANJA.
JUDGE.
Delivered, dated and signed at Kitale this ……………………………… day of April, 2006 in the presence of:-