[2014] KEHC 2355 (KLR)

IN THE HIGH COURT OF KENYA AT BUNGOMA

HIGH COURT CIVIL APPEAL NO. 28 OF 2012

PHILLISTER CHEPKOROM …...........................................APPELLANT

VERSUS

BARASA CHEPKOROM.................................................... RESPONDENT

[Being an appeal arising from the decision of the hon R.O. OIGARA ESQ. Senior Principal Magistrate delivered on 13th October 2009 in Kimilili SRM no. 42 of 2009]

JUDGMENT

1. This appeal arises from the decision of Hon. R.O. Oigara esq. SRM – Kimilili in Kimilili SRMCC case no. 42 of 2009 delivered on 13th October 2009. The appellant was the defendant in the suit before the subordinate court. That suit was not defended by the appellant as she failed to enter appearance and/or filed defence within the prescribed time. She listed 11 grounds in her memorandum of appeal. In submissions filed by the counsel for the appellant, she has argued grounds 1, 2, 3,4,5,6, and 9 together, ground 8 & 11 together and ground 7 by itself. This infers she has raised 3 main grounds in her appeal as follows;

i) The respondent lacked locus standi to institute the proceedings in the lower court.

ii) The learned magistrate erred in fact and in law in awarding an eviction order that was so inordinate, punitive and oppressive.

iii) The learned trial magistrate erred in weighing the respondent's case in isolation from what he had pleaded in the plaint.

2. To begin with, the appellant submits that the suitland Elgon/Chemoge/313 is registered in the name of Naibei Chepkorom – deceased. That no grant of letters of administration were taken out by the respondent before filing the suit before the subordinate court hence that suit was incompetent abnitio. They cited two cases to buttress this submissions i.e Meshack Thungu Kabati vs. German Assisted Settlement Program Nbi. HCCC no. 2242 of 1999 and Jacob Mwanto Wangura Vs. Gideon Merisho Wangura Nbi HCCA no. 486 of 2001. This court takes cognizance of the position taken case of Selesia M”Aribu vs. Meru County Council Nyeri Civil Appeal no. 183 of 2002 where the Court of Appeal implied that “locus standi” is both an issue of fact and law. In distinguishing the two case law cited by the appellant, the issue of locus standi in the two cases was raised before the courts which heard the subject matter. In the instant, it is being raised for the first time on appeal.

3. In the suit before the subordinate court, the respondent did not bring the claim on behalf of the estate of his deceased father but on his own behalf. He based his claim on the minutes of the clan which shared out the suitland between him and the appellant. Was it fatal for the respondent to have commenced the suit without first obtaining letters of grant of the estate of Naibei Chepkorom? In my view I do not think so because his claim was not directly for the benefit of the estate. Furthermore in the case of Julius Oduor vs. Regina Akoth Omondi [2009] e KLR, Karanja J.had this to say;

“However and in this court's view, whether the respondent had or had no locus standi to bring the claim against the appellant was a matter of fact which could only have been decided at the time of hearing of the dispute. The appellant did not raise the issue at the opportune time. He cannot be allowed to raise it at this juncture for it is a matter of fact and law.”

I agree with the position taken by the judge on this issue. The appellant ought to have raised the issue at the trial and having failed to defend that suit or set aside that judgment; it is too late in the day to bring up the issue of now.

4. Did the magistrate err in awarding the respondent the orders of eviction sought? The respondent produced in evidence certificate of official search for L.R. Elgon/Chemoge/313 which bore the name of Naibei Chepkorom- deceased. In his evidence he said the appellant went to the land in 1975. On 14th February 2009 the clan shared out the suit land by giving the appellant 20 acres and the respondent 16 acres. He produced the minutes of that meeting as his exhibit. On this aspect of sharing, I agree with the appellant that the magistrate was wrong not to have brought himself to take into account the land was in the name of a deceased person before reaching his decision. The clan lacked basis in law to distribute the estate of Naibei Chepkorom- deceased. The respondent did not have the title to the suitland to be entitled to eviction orders. The respondent based his claim on the decision of the clan which did not have any basis as is was reached contrary to the provisions of section 45 of the Law of Succession Act Cap 160 which forbids any person from intermeddling with the estate of a deceased person.

5. Other than the sharing of the estate of the the deceased by the clan, the respondent did not adduce any evidence why he was entitled to the two acres he was claiming from the appellant. The respondent may be entitled to the portion he is claiming but he chose a wrong forum to use in enforcing that right. Both parties herein ought to file a succession cause to the high court for purposes of administering and distributing the land parcel no Elgon/Chemoge/313. Thelearned trial magistrate reached a wrong conclusion in allowing the suit before him as the respondent was not entitled to the orders of eviction. For the reasons given, I allow this appeal and set aside the judgment entered in favour of the respondent and substitute thereto with an order dismissing that suit. Since both parties are related, I order each party to bear its own costs both of the suit in the court below and of this appeal.

Dated and Delivered in Bungoma this 22ndday of October2014.

A. OMOLLO

JUDGE