Ann N Oluta v Francis Bede Juma Oluta [2014] KEHC 2391 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

HC MISC. APPLICATION NO. 214 OF 2013

ANN N. OLUTA   …................................................................APPLICANT

VERSUS

FRANCIS BEDE JUMA OLUTA …..................................RESPONDENT

RULING

1.         This  ruling is in respect  of two applications.  The first application  was filed by Ann Nabukhwami  Oluta filed in court on 4th December 2013.  The second application was brought by Francis Bede  Oluta. I will    thus make my determination on the first application and  follow  with the 2nd one.

2.         Mrs  Ann Oluta in her motion  sought the following orders;

1.   THAT this honourable court be pleased to issue  an order that  9 ½ acres of land comprised in  title no.  E. Bukusu/S. Kanduyi/328 be vested in the name of the applicant.

2.     THAT the respondent herein be compelled to  sign all necessary transfer documents in favour  of the applicant pertaining to the said 9 ½ acres failure  of which the Executive Officer of this honorable court be authorized to do so.

3.   THAT the respondent herein be ordered to surrender the original title pertaining to land parcel no.  E. Bukusu/S. Kanduyi/328 to facilitate  the process in paragraph 1 & 2 above  failure  of which an order be made that its production be dispensed with.

4.    That the costs of this application  be provided for.

3.         The motion was premised on the grounds on the face of it and the supporting affidavit  of the applicant.  Her grounds inter alia was to the effect that the Western Provincial Appeal Tribunal upheld the  decision of the Kanduyi Land Disputes Tribunal and secondly the respondent's appeal vide Bungoma HCCA no. 23 of 2011 was declared having failed.  She deposes that the respondent has not co-operated to  transfer to her 9 ½ acres of land comprised in title E. Bukusu/S. Kanduyi/328. Hence she needs orders of the court    to  acquire title in her name.

4.         The application is opposed.  The respondent  deposes in paragraph 6 that the orders sought by the applicant were never granted in the said judgment.  He also deposes that this application is  fundamentally defective and cannot  stand on its own without a substantive suit and it ought to be dismissed.  Further the respondent states  that he has intentions to appeal the judgment of the court in  Bungoma  HCCA no. 23 of 2011 and has  filed an application seeking leave to lodge an   appeal out  of time.  He urged  this court to stay  further proceedings             pending  determination of the matter before the Court of Appeal.  But in paragraph 12, he  depones that is advised by his lawyers to  urge     the court to  dismiss the present application for being bad in law and incompetent.

5.         The parties agreed to file written submissions.  It is  only the respondent whose submissions I have on record.  I have considered the said submissions part of which I  find  inapplicable to the present  circumstances e.g reference to section 26 (1) of the Land Registration  Act as registration of ownership of the suitland is not in  question. The respondent submits the orders sought in the motion are substantive and therefore cannot be  disposed off by an interlocutory  application.  He cited case law of Nbi. HCCA no. 622 of 2005,  Gilbert Maina vs. Purshotcom Singhandsec. 19 of Civil  Procedure Acttogether withorder 3 rule 1 (1) of the Rules.   Lastly he submits that  what is sought was never granted in the  decision in Bungoma HCCA 23 of 2011.

6.         Turning to the merits of this application, the applicant is asking the court to make an order vesting 9 ½ acres to her and an order compelling the respondent to sign all necessary transfer documents  in her favour in default, executive officer of this court to do so.  The basis of her application is formed by the decisions of Kanduyi Land Disputes Tribunal, Western Provincial Land Appeal Committee and the decision of this  court in Bungoma HCCA no. 23 of 2011. Now the Kanduyi Land Disputes Tribunal had awarded her 9 ½ acres of land comprised in title no. E. Bukusu/S.Kanduyi/328. The respondent was not happy  with this decision and filed an appeal to the Western Provincial Land Appeals Committee. The Western Provincial Land Appeals Committee upheld the decision of the Kanduyi  Land Disputes Tribunal. Still being unhappy the   respondent filed an appeal against the decision of the  Western Provincial Land Appeals Committee to  the High Court vide  Bungoma HCCA no. 23 of 2011.

7.         I heard the appeal which was  allowed  partly.  On one part, I held that the  Kanduyi  Land Disputes Tribunal had jurisdiction to hear this matter in as much as it related to a right to occupy and or work  land and/or  division of land.  My judgment was not numbered but at page 7, last paragraph I stated thus;

“However a reading of  the award of the   Kanduyi  Land Disputes    Tribunal was partly in excess of  jurisdiction particularly award no. 1 which gave the  respondent 9 ½ acres of land and no. 5 which ordered the objector/appellant to process title for the same. I therefore set aside the two awards and leave  it to the respondent to take appropriate steps under the new Land Registration Act to get  the physical sharing of the land.  Ground  2 of the appeal thus succeeds in part to the extent of  the limb  1 and 5 of the award is set aside.”

On page 9 which is the final part of the decision, I said, “The appeal therefore  succeeds in part on the two limbs of the award set aside but   the rest of the decision is upheld.”

8.         This judgment was annexed by the applicant as  ANO-I to her affidavit in support of the application.  What the applicant did is highlight one sentence in the judgment which read, “In light of the foregoing, all the grounds of appeal fail for the reasons given.”I admit that this sweeping statement was a mistake and must be what confused the applicant to believe that the appeal was  wholly dismissed. However if she took   time to read the judgment in its entirety, she would have understood the gist of my decision. The  judgment in Bungoma HCCA no 23 of 2011 found that the Kanduyi Land Disputes Tribunal's decision to award the applicant 9 ½ acres of land was made in excess of jurisdiction and that award was set aside.  I also found the Land  disputes Tribunal was  wrong to direct  Francis Oluta to process title in her favour. In fact my   judgment informed her to claim her  rights under the provisions of  the Land Registration Act.

9.         The respondent herein is  thus right to submit  that the applicant  is   asking for what was never granted in the judgment.  To put it in another way, she is asking to execute part of the award of the  Kanduyi Land Disputes Tribunal and  Western Provincial land  Appeals Committee which was actually set aside in Bugoma  HCCA no. 23 of 2011.  With this state of events, her motion has no legs to stand on and is therefore incompetent.  The motion is lacking in merit and is accordingly dismissed.

10.      The 2nd application brought  by Francis Oluta dated 6th May 2014     seeks stay of proceedings  pending the hearing and determination of the application dated 1st  August  2013 in  Eldoret court of appeal  civil application no. 230 of 2013. In the alternative he prays for stay of  execution of the judgment and decree in Bungoma HCCA no. 23 of 2011 pending  hearing of Eldoret Court of appeal civil application no. 230 of 2013.

11.       In this application, I shall not go into merits of the application because of the order reached by the court of appeal in  civil application no. 230 of 2013. In the order dated 27th February 2014, S. Ole Kantai JA made the following order;

“ There is no appearance for either the applicant or the respondent in  this matter. In the premises the motion  dated 1st August 2013 is dismissed under  rule 56 of the rules with no order as to costs.”

12.      The stay was  requested to be given pending determination of the  motion in the court of appeal which has been  dismissed. This court     cannot grant what is not prayed for and since the  existing prayers  have been determined by virtue of the decision of the court of appeal, there is nothing else for this court to render a determination  on. Consequently the appeal fails and is dismissed.

13.      In reference to costs of both application, the parties are still a couple and advance in age. I will therefore  order that each  of the parties bear their costs in both applications.

Dated and Delivered in Bungoma this 15th day of October, 2014.

A. OMOLLO

JUDGE