Felista Rwamba Kanambiu v Nicholas Ireri Kanambiu & Ireri Kariuki Mikinyango [2015] KEHC 4015 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

MISC. APPLICATION NO. 13 OF 1995

FELISTA RWAMBA KANAMBIU………………........……APPLICANT

VERSUS

NICHOLAS IRERI KANAMBIU…….….…….……..1ST RESPONDENT

IRERI KARIUKI MIKINYANGO…….……………….2ND RESPONDENT

R U L I N G

This case came up for mention on 04/05/2015 with a view of finding out whether the mother Runyenjes Succession cause file No. 52 of 1977 had been traced at Runyenjes and forwarded to court as ordered by the Judge on 28/02/2012.  the case has been mentioned several times but the file has not been availed.  The deputy registrar of this court filed an undated report which states that despite efforts made by the executive officer Runyenjes, the file could not be traced.

Prompted by the Deputy Registrar's report, the counsel for the 3rd party Mr Ithiga asked the court to follow the orders made by the court on 28/02/2012.

the oral application was opposed by the applicant's counsel MR. P.N. Mugo who argued that the orders made by Ong'udi Judge on 28/02/2012 were unconstitutional and should not be followed.  Mr Mugo further argued that if the said orders were executed, his client would be adversely affected.

Mr Ithiga responded that the orders made on 28/02/2012 have not been challenged and ought to be followed.  He said that his client had applied for lifting of restrictions against the title of the parcels of land he bought from the administrator of the estate in succession cause No. 52 of 1977.  the orders made by the judge- were merely meant to preserve the properties pending hearing of the summons for revocations of grant.  The only issue remaining is to determine how the summons for revocation would be heard.

On perusal of the court record, I note that the orders made on 28/02/2012 were made in determination of an application dated 14/7/2011 for lifting of restrictions against the titles LR. KAGAARI/KIGAA/4658.  It is therefore correct as argued by Mr Ithiga that the orders were made for preservation of the land belonging to his client the interested party.

The orders were as follows;-

I am giving the 2nd Respondent 30 days from today's date to move the court for directions.

The Deputy Registrar to immediately call for the Runyenjes Succession Cause No. 52 of 1977.

if No. 1 is not complied with, this file to be brought before this court for necessary orders to be given concerning the whole application for revocation and annulment of the grant.

I also order that the restrictions on the land NO. KAGAARI/KIGAA/4658 remain in place for only 90 days from today's date.  If no other orders are made,  it shall be lifted after the 90 days.

It has been confirmed by the report of the Deputy Registrar that the Runyenjes file cannot be traced for the last three (3) years since the orders were made.  The summons for revocation have a long history of having been reinstated on 11/02/2008.

I find nothing wrong with the orders made by the judge on 28/02/2012. The orders are not unconstitutional as alleged.  Some of the orders concerning forwarding the Runyenjes file and taking directions for hearing of the summons for revocation have been overtaken by events due to loss of the file.  The orders are now absolute.  The only order which is valid and enforceable is order No. 4 of the restrictions against the title of AGAARI/KIGAA/4658.  This order is necessary until the summons for revocation of grant is heard and determined.  For this reason I order that the order remains in force until the hearing and determination of the revocation of grant summons.  The other orders 1, 2 and 3 are hereby discharged.

In the interests of justice, I direct that the Runyenjes file No. 52 of 1977 be reconstructed by the applicant with the assistance of the Runyenjes court Executive Officer within 30 days and directions taken 30 days after reconstruction before the Deputy Registrar.

Mention before Deputy Registrar on 16/07/2015 to confirm compliance of the order.

DELIVERED, SIGNED AND DATED AT EMBU THIS 16TH  DAY OF JUNE, 2015.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Ithiga for 3rd party

Mrs. Njuguna for Applicant