[2018] KEELC 4763 (KLR)
The court found that the death certificate provided by the applicant related to Zakies Swakei Kaurrai, who died in 2011 at the age of 36, whereas the respondent in the appeal was Kanunu Kaurrai, who was involved in land transactions in 1965. The court reasoned that it was implausible for a person who died at 36 in...
Source-derived case information.
- Citation
- [2018] KEELC 4763 (KLR)
- Parties
- Appellant: Wanjiru Wairagu Wanjohi; Respondent: Miriam Naisuagu Kanunu (Suing on behalf of the Estate of Kanunu Ole Kaurrai – deceased)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 163 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application for Review or Setting Aside of Judgment
- Outcome
- application struck out with costs
- Judges
- OA Angote
- Legal Topics
- Review of Judgment, Death of Party, Land Disputes Tribunal Jurisdiction, Representation of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanjiru Wairagu Wanjohi
Appellant
Miriam Naisuagu Kanunu (Suing on behalf of the Estate of Kanunu Ole Kaurrai – deceased)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review or Setting Aside of Judgment
Legal Issues
- 1 Whether the court should set aside or review the order made on 13th February, 2015 due to an error apparent on the face of the record.
- 2 Whether the appeal was determined in the absence of a necessary party or their legal representative due to the death of the respondent.
- 3 Whether the death certificate provided related to the respondent in the appeal.
Ratio Decidendi
The court found that the death certificate provided by the applicant related to Zakies Swakei Kaurrai, who died in 2011 at the age of 36, whereas the respondent in the appeal was Kanunu Kaurrai, who was involved in land transactions in 1965. The court reasoned that it was implausible for a person who died at 36 in 2011 to have sold land in 1965, and there was no evidence to show that Zakies Swakei Kaurrai was the same person as Kanunu Kaurrai. Consequently, the court held that the applicant failed to establish that the respondent in the appeal had died before the determination of the appeal or that there was an error apparent on the face of the record. The application for review or...
Court Disposition
application struck out with costs
Orders
- The application dated 19th August, 2016 is struck out with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. APPEAL NO. 163 OF 2010
WANJIRU WAIRAGU WANJOHI.............APPELLANT/RESPONDENT
VERSUS
MIRIAM NAISUAGU KANUNU (Suing on behalf of the Estate of
KANUNU OLE KAURRAI – deceased).....RESPONDENT/APPLICANT
RULING
1. In the Application dated 19th August, 2016, the Respondent/Applicant is seeking for these reliefs:
a.That this Honourable Court be pleased to set aside or review the order made by Justice Kariuki on the 13th February, 2015 as there was an error apparent on the face of the record.
b.Costs of this Application be in the cause.
2. The Application is premised on the grounds that the Respondent died on 11th May, 2014 long before the appeal was determined; that the Judge erred in determining the appeal in the absence of one of the parties or a legal representative of his Estate and that the Judgment should be reviewed.
3. In response, the Appellant/Respondent’s advocate deponed that the Applicant was represented by the firm of Mulwa Isika and Mutia Advocates; that directions for the hearing of the appeal were given on 8th October, 2013 and that the advocates filed their respective submissions on 9th December, 2013 thus concluding the appeal.
4. It is the Appellant’s advocate case that the Respondent in the appeal was represented throughout the appeal.
5. The Applicant’s counsel submitted that by the time the appeal was heard and determined, the Respondent in the Appeal had already died; that the court was oblivious of the said death and that the Estate of the deceased has been subjected to suffer.
6. Counsel submitted that the case before the Judge was for encroachment and not ownership of the land and that the Land Disputes Tribunal had jurisdiction to handle the matter.
7. The Appellant/Respondent’s advocate submitted that it is not true that the Appeal proceeded in the absence of the Respondent.
8. I have perused the Certificate of Death annexed on the Applicant’s Affidavit. According to the said Certificate of Death, one Zakies Swakei Kaurrai aged 36 years died on 11th February, 2011 at Makindu Hospital.
9. The name of the claimant in the Land Disputes Tribunal and the Provincial Land Appeals Committee is one Kanunu Kaurrai and not Zakies Swakei Kaurrai.
10. Indeed, in the proceedings before the Provincial Land Disputes Appeals Committee, the Appellant herein informed the Committee that her husband bought 6 acres in 1965 from one Kanunu Kaurrai. The Respondent, Kanunu Ole Kaurrai, informed the Committee that he only sold to the Appellant’s husband 4 acres.
11. Now, if the deceased was only 36 years old as at the time of his death in the year 2011, it cannot be said that he is the one who sold to the Appellant’s husband land in the year 1965.
12. In the absence of evidence to show that the person who died on 11th February, 2011 and going by the name of Zakies Swakei Kaurrai is indeed the Respondent in the Appeal, I find the Application to be unmeritorious.
13. I therefore strike out the Application dated 19th August, 2016 with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 26TH DAY OF JANUARY, 2018.
O.A. ANGOTE
JUDGE