In re Estate of Makai Kaluti Ndunda (Deceased) [2018] KEHC 5050 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

SUCC. CAUSE NO. 201 OF 2017

IN THE MATTER OF THE ESTATE OF MAKAI KALUTI NDUNDA (DECEASED)

MARGARET MAKAI ........................PETITIONER

-VERSUS-

JULIUS MAWEU KILONZO................OBJECTOR

RULING

INTRODUCTION

1. This Ruling is with respect to the Preliminary Objection (P.O) dated 09/05/2018 and by extension, the application dated 11/04/2018 (herein after ‘the application’) filed by the Petitioner in person.  The Preliminary Objection was filed by M/S B. M. Mung’ata & Co. Advocates for the Objector.

2. In a nut shell, the application seeks orders to have the Land Registrar, Machakos compelled to re-issue certain Title Deeds to the Petitioner herein.  The parcels of land in question are;

a) Agricultural plot No. 17 in Malili Ranch Co. Ltd [Currently known as Konza North/ Konza North Block 2 (Malili)/1934]-herein after ‘parcel No. 1934. ’

b) Commercial plot No. 502 in Malili Ranch Co. Ltd- herein after ‘plot No. 502. ’

(Collectively referred to as ‘the properties’).

3. The application also seeks an order for cancellation of the title to parcel No. 1934, issued to the Objector herein, and that the same be re-issued in the name of the Petitioner.

4. The Preliminary Objection is worded as follows;

a)That this Court has no jurisdiction to cancel title to land which is a preserve of the Environment and Land Court by dint of the law.

b)That the application is fatally defective because the orders sought are substantive in nature and cannot be issued through an application.  They can only be issued through a substantive suit.

5. Before proceeding any further, it is imperative to give a brief background of the matter.

BRIEF BACKGROUND

6. The Petitioner is the administrator of the deceased’s estate. The grant was issued on 16/09/2015 and confirmed on 27/04/2017.  The aforementioned properties were included in the Petitioner’s schedule for distribution.

7. At the time of filing the cause, the Petitioner attached an allotment letter indicating that the properties were owned by the deceased.  Armed with the confirmed grant, the Petitioner moved the Court through an application dated 22/02/2018.

8. She was basically seeking orders to compel the chairman of Malili Ranch Co. Ltd to issue the title deeds of the properties in her name.  The orders sought in the application were granted on 19/03/2018.

9. At that juncture, it appeared that the Court order with regard to plot No. 1934 could not be complied with because the property had been transferred to the Objector herein.  A title deed was issued to him on 29/08/2017.

10. This prompted the Petitioner to file the application under consideration (dated 11/04/2018) seeking the cancellation of the title deed issued to the Objector.

ANALYSIS

11. The Petitioner is seeking cancellation of the title deed on the ground inter alia that registration was obtained through fraud.

12. I have looked at the subsequent pleadings filed by the parties and it is my considered view that ownership of plot No. 1934 is no longer apparent. There are allegations and counter allegations which have metamorphosed into complex issues that cannot be adequately canvassed through an application.

13. To illustrate briefly, the Objector claims that he bought the property from the deceased prior to his demise.  On the other hand, the Petitioner claims that the whole purchase price was refunded.

14. The Objector counters that by saying that there is a balance of the purchase price which was not refunded and which has been accruing interest at the rate of 10% since November 2011.

15. For the parties to prove their respective positions there will be need for detailed discovery, pre-trial procedures, calling witnesses, cross examination and all related procedures.

16. Despite an Originating Summons (O.S) being one of the ways of instituting suit, there are instances where it has been held to be inadequate.

17. In the case of Wakf Commissioner -Vs- Mohamed bin Umeya bin Abdulmaji Bin Mwijabu (1984) KLR 346, the Court of Appeal held that an Originating Summons is intended for settling simple matters without the expense of a full trial and not for serious issues.

18. In Kibutiri -Vs- Kibutiri (1983) KLR 1 Law J.A held as follows:

“The scope of an inquiry which could be made on an Originating Summons and the ability to deal with a contested case was very limited. When it becomes obvious that the issues raise complex and contentious questions of facts and law, a judge should dismiss the summons and leave the parties to pursue their claim by ordinary suit.”

19. In our case, the Petitioner seeks to have the title of Julius Maweu Kilonzo cancelled through an application.

20. Now, if an O.S is inadequate with regard to complex issues, it follows without saying that a mere application cannot do justice to such a matter.

21. Further, the said Julius has not even been named as a party in the application and this means that he will not be afforded an opportunity to defend his position.

22. From the foregoing, it is obvious that the question of ownership of plot No. 1934 is at the heart of this matter and the proper forum for canvassing the issue is the Environment and Land Court (ELC).

23. Further, in the event that it becomes necessary to cancel the title, the Court clothed with jurisdiction is the ELC by dint of section 80 of the Land Registration Act, No 3 of 2012.

24. As for the summons for revocation of grant filed by the Objector, my view is that it has to be stayed until the ownership of plot No. 1934 is determined by a competent Court.

CONCLUSION

25. The Preliminary Objection be and is hereby upheld. The court thus makes the following orders;

i. The application is incompetent and is hereby struck out with no orders as to costs.

ii. The application for revocation of grant is stayed pending the parties to move ELC court and a determination thereof to be made.

SIGNED, DATED AND DELIVERED THIS 26TH DAY OF JULY 2018, IN OPEN COURT.

........................

C. KARIUKI

JUDGE