[2014] KEHC 3963 (KLR)
The court found that the respondent's claim to a portion of the land, based on long occupation and alleged purchase by his father, did not justify the continued lodging of a caution. The proper procedure for asserting such a claim is through a substantive suit or originating summons, not by maintaining a caution....
Source-derived case information.
- Citation
- [2014] KEHC 3963 (KLR)
- Parties
- Applicant: Pryson Makokha Tabata; Respondent: Charles Wekesa Wanyama
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 15 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- AA Omollo
- Legal Topics
- Removal of Caution, Succession Proceedings, Land Disputes, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pryson Makokha Tabata
Applicant
Charles Wekesa Wanyama
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the caution lodged by the respondent on land parcel N. Wanga/Khalaba/371 should be removed to enable confirmation of grant in succession cause no. 77 of 2013.
- 2 Whether the respondent has established a legal claim to the land sufficient to sustain the caution.
- 3 Whether the existence of a caution is a bar to confirmation of grant under the Succession Act.
Ratio Decidendi
The court found that the respondent's claim to a portion of the land, based on long occupation and alleged purchase by his father, did not justify the continued lodging of a caution. The proper procedure for asserting such a claim is through a substantive suit or originating summons, not by maintaining a caution. Furthermore, the existence of a caution constitutes an encumbrance that can impede confirmation of a grant in succession proceedings. The respondent failed to demonstrate that his interests were not addressed in the succession cause or to pursue his claim through the appropriate legal channels. Therefore, the applicant's motion to remove the caution was merited and allowed.
Court Disposition
application allowed
Orders
- The caution lodged on title no. N.Wanga/Khalaba/371 by the respondent is to be removed forthwith.
- Each party shall bear their own costs of the application.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISCELLANEOUS CIVIL APPL. NO. 15 OF 2014
PRYSON MAKOKHA TABATA.............….....................................APPLICANT
VERSUS
CHARLES WEKESA WANYAMA…......................................... RESPONDENT
RULING
1. The applicant has moved the court by way of miscellaneous civil application seeking for the removal of caution lodged on land parcel no. N. Wanga/Khalaba/371 by the Respondent. The reason given for seeking orders sought is to enable the applicant to confirm the grant in HC succession cause no. 77 of 2013.
2. The motion is opposed and the Respondent filed a replying affidavit. In the affidavit, the respondent deposes his father purchased a part of L.R N. Wanga/Khalaba/371 and they have been living on that portion for over 20 years. He also deposed that he filed citation proceedings to prompt the applicant to take out letters of grant of his father on receipt of which pleadings the applicant commenced the subsisting succession cause. He deposed further that the applicant has not demonstrated that he has included the respondent as a beneficiary in that cause. He concluded that there is no requirement to remove a caution before a grant can be confirmed.
3. I have considered the matters in issue raised by both parties. It is clear from the replying affidavit that the respondent has a claim to a portion of the land in question. Under Order 3 (1) of the Civil Procedure Rules provides that every suit shall be instituted by presenting a plaint or in such other manner provided. In a claim for land, such other manner provided is under Order 37 where a claim is presented by way of originating summons. There is no way the lodging of a caution by itself will bestow the respondent any portion of this land. He is aware of the options open 0to him/them to establish their claim and sustaining a caution on the title is not one of options. It is also within the provisions of the Succession Act that a grant cannot be confirmed in respect of an asset which has an encumbrance. In my view, it was upon the respondent to demonstrate to this court that his/their interests are not taken care of in the succession cause and not depose that it was the duty of the applicant to do so.
4. Consequently, I find the notice of motion has merit and allow it.The caution lodged on title no. N.Wanga/Khalaba/371 by the respondent be removed forthwith.Each party shall bear their costs of this application.
Dated, Signed and Delivered in Bungoma this 30th day of JUNE 2014.
A. OMOLLO
JUDGE