[2017] KEHC 9156 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

FAMILY DIVISION

SUCCESSION CAUSE NO. 290 OF 2007

IN THE MATTER OF THE ESTATE OF OMWITAKHO AMUNE (DECEASED )

BETWEEN

ISAAC FUNDIEMBE OMWITAKHO….…………….….……..PETITIONER

AND

PAUL OTINGA OMWITAKHO………………………..………..OBJECTOR

AND

JOSEPH ONGUME KHWALE……………………………..…..APPLICANT

R U L I N G

Introduction

1. The application for determination is the one dated 2. 11. 2016 brought under Section 1A, 1B, 3 and 3A of the Civil Procedure Act Cap 21 Laws of Kenya, Order 51 Rules 1 (2010) and Section 44 of the land Act (2012) and Articles 60(1)(l), 64(a), 159, 165 (3) (a) and Article 259 of the Constitution of Kenya.

2. The applicant seeks declaratory orders declaring that Land Parcel No. Marama/Lunza/3110 is legally, law fully and rightfully registered in his names that is Joseph Ongume Khwale as the sole proprietor. The applicant also seeks conservatory orders in his favour to protect conserve and reserve the said land. The applicant also wants to be removed from the proceedings in this case.

3. The application which is supported by the applicant’s own affidavit is premised on the grounds that the applicant bought the said parcel of land from one ISAAC FUNDIEMBE AMWITAKHO as shown in an agreement dated 12. 09. 20107 and the same transferred to him as provided by the Law. A title deed was issued to him on 30th April, 2009 by the Land Registrar and therefore the said parcel is legally and lawfully his and the title cannot be taken away from him without his express consent.

Response

4. The application is opposed. There is a replying affidavit by one Paul Otinga Omwitakho the objector. He states that he contested the confirmation of grant issued to the petitioner herein on 28th day of July, 2010. His summons to revoke the grant intestate was resolved through a consent filed by the beneficiaries and which was adopted as an order of his court on the 24th day of February, 2014. A certificate of confirmation of grant intestate in line with the consent and amended consent “ POO 5 and 6” was issued on 25th February, 2014 but on presentation at the Land Registrar’s office at Kakamega for implementation it was discovered that an earlier certificate of confirmation of grant issued on 28. 07. 2010 “POO3” had already been acted upon since the estate of the deceased LR No. Marama/Lunza/1614 had been closed down and subdivided into several portions. See the certificate of official search marked “POO8”.

5. The applicant avers that in light of the above and as per the advice of the Land Registrar County of Kakamega, he sought an order formally cancelling the sub divisions shown on exhibit “POO8” which was done via summons dated 8th June, 2014 which was determined by consent dated 23rd February, 2016. He explains that LR. No. Marama/Lunza/3110 which is in the name of the applicant was one of the subdivisions which emanated from the plot No. 1614 making the said sub-division null and void. He prays that the application be dismissed.

Determination

6. Having heard the parties and having read the application and the replying affidavit, it is clear that plot No. 1614 was sub-divided and No.3110 came from this main parcel. There was a consent order which subsequently cancelled all the sub-divisions of land parcel No. 1614. This consent order has not been contested or appealed against. The same is still in force. The applicant ought to have appealed against the said order instead of seeking declaratory and conservatory orders. In any event, the declaratory orders sought by the applicant are the preserve of the Environment and Land Court whose mandate it is “ to hear and determine disputes relating to the environment and the use and occupation of and title to land……” Section 13 of the Environment and Land Court, Act Chapter 12A sets out the Jurisdiction of the ELC in accordance with the provisions of Article 162(2) (b) of the constitution of Kenya 2010. The applicant’s application is therefore without merit and is accordingly dismissed with costs to the Objector/Respondent.

Orders accordingly

Ruling delivered dated and signed in open court at Kakamega this 13th day of July, 2017

RUTH N. SITATI

JUDGE

In the presence of;-

…………Mr. Shikhule(present)………………........for Applicant

…………Mr. Kundu(absent)…………………….....for Objector

…………In person but absent………………….....for Respondent

………....Polycap……………….…………...............Court Assistant.