[2010] KEHC 2388 (KLR)
The court found that the grant under which the respondent transferred the land to himself had been revoked, and therefore the respondent had no legal basis to remain as the registered proprietor of the land. The Notice of Appeal filed by the respondent did not operate as a stay of execution, and there was no...
Source-derived case information.
- Citation
- [2010] KEHC 2388 (KLR)
- Parties
- Applicant: Susan Chebich Barchibei; Respondent: Charles Kibiwot Barchigei
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 54 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Legal Topics
- Rectification of Land Register, Revocation of Grant, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Chebich Barchibei
Applicant
Charles Kibiwot Barchigei
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the Land Registrar should rectify the register of LR.NO.NANDI/CHEPTIL/173 by deleting the respondent's name and restoring the deceased's name.
- 2 Whether the Notice of Appeal filed by the respondent operates as a stay of execution of the court's orders.
- 3 Whether the respondent remains the administrator of the estate after revocation of the grant.
Ratio Decidendi
The court found that the grant under which the respondent transferred the land to himself had been revoked, and therefore the respondent had no legal basis to remain as the registered proprietor of the land. The Notice of Appeal filed by the respondent did not operate as a stay of execution, and there was no evidence that the respondent had taken any steps to prosecute the appeal. Consequently, the court ordered the Land Registrar to rectify the register by deleting the respondent's name and restoring the name of the deceased, Jonathan Kipkoros Barchigei, to facilitate proper succession proceedings.
Court Disposition
application allowed
Orders
- The Land Registrar Nandi is directed to rectify the register of land parcel LR. No. Nandi/Cheptil/173 by deleting the name of Charles Kibiwot Barchigei and restoring the name of Jonathan Kipkoros Barchigei.
- The costs of this application will be borne by the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT ELDORET
MISCELLANEOUS APPLICATION 54 OF 2004
SUSAN CHEBICH BARCHIBEI .........................................APPLICANT
VERSUS
CHARLES KIBIWOT BARCHIGEI................................RESPONDENT
RULING
This is an application brought under the provisions of Rules 59 and 73 of the Probate and Administration Rules cap.160 of the Laws of Kenya. It prays for an order of the court directed at the Nandi District Land Registrar to rectify the Register of land parcel LR.NO.NANDI/CHEPTIL/173 by deleting the name of Charles Kibiwot Barchigei as proprietor and replacing it with that of the late Jonathan Kipkoros Barchigei.It is brought on the grounds that the said Charles Kibiwot Barchigei used a grant issued by the Kapsabet court in succession cause,PM P&A.No.78 of 1995 to transfer the above said parcel of land from the name of Jonathan Kipkoros Barchigei to himself and as the said Grant was revoked by this court the Respondent herein has no business having his name remain as the registered owner of the said parcel of land.The Applicant requires the transfer of the land so that he can commence meaningful succession proceedings in respect of the estate of the late Jonathan Barchigei who is the rightful owner of the land the subject matter hereof.The Applicant has sworn the supporting affidavit.
In opposing the application the Respondent swore a Replying affidavit stating that he filed a Notice of Appeal against the revocation of the Grant and as such the orders sought ought not to issue. The Respondent describing himself as the administrator of the estate of the late Jonathan Kipkoros Barigei prayed that the Land Register be not changed to remove his name as the registered owner of the parcel of land known as LR.NO. Nandi/Cheptil/173.
It is a matter admitted by all parties as a fact that this court did revoke the Grant.The Respondent herein then filed a Notice of Appeal to the court of Appeal on14th March 2006. To date he has done nothing towards processing that appeal, at least he showed this court nothing to that end.And in any event that Notice of Appeal cannot by itself operate as a stay of execution of the orders of this court.And the Respondent is by no means the administrator of the estate of the deceased herein the Grant having been revoked.In light of the revocation of the Grant this court hereby issues an order directed at the Land Registrar Nandi to rectify the Register of land parcel No. LR. No. Nandi/Cheptil/173 by deleting the name of Charles Kibiwot Barchigei and restoring the names of Jonathan Kipkoros Barchigei.The costs of this application will be borne by the Respondent.
It is so ordered.
DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF MAY 2010
P.M.MWILU
JUDGE
IN THE PRESENCE OF
Machio-Advocate for the Applicant
Ms. Wangila-Advocate for the Respondent
Andrew-Court clerk
P.M.MWILU
JUDGE