In re Estate of Tatayo Mumakombe Talidi (Deceased) [2022] KEHC 3296 (KLR)

In re Estate of Tatayo Mumakombe Talidi (Deceased) (Succession Cause 640 of 2006) [2022] KEHC 3296 (KLR) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3296 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 640 of 2006

WM Musyoka, J

July 8, 2022

IN THE MATTER OF THE ESTATE OF TATAYO MUMAKOMBE TALIDI (DECEASED)

Ruling

1. On 17th September 2021, I delivered a ruling herein, where I found that the cause herein, Kakamega HCSC No. 640 of 2006, had been filed in abuse of court process, on account of the pendency of Kakamega HCSC No. 317 of 2003, which had been initiated earlier on the estate of the same deceased individual. I directed that the file herein be closed, and that al the proceedings be conducted in or under Kakamega HCSC No. 317 of 2003. I also ordered cancellation of any transactions that might have been carried out on the basis of the grant made in Kakamega HCSC No. 640 of 2006, whether confirmed or not.

2. The outcome in the ruling of 17th September 2021 aggrieved Victor Harry Imbongo, and he has brought an application dated 22nd October 2021. I shall refer to Victor Harry Imbongo hereafter as the applicant. He states that he is appealing that decision, and that he has filed a notice of appeal herein, the date of the filing is not clear, but it appears to be 20th September 2021 or 24th September 2021. He also applied for copies of typed proceedings and judgment, vide a letter dated 29th September 2021 and lodged herein on 30th September 2021. He would like the orders of 17th September 2021 to be stayed. He claims to be in occupation of South Kabras/Bushu/1970, and he fears that his rivals may use the order to interfere with his occupation of the land. He says that he has arguable points that he would like to canvass at the Court of Appeal against those orders.

3. There are two replies to the application by Sabeti Khamete Francis and Daniel Njoroge Gichara, respectively who I shall refer to hereafter as the respondents. Sabeti avers that the land registrar has already effected the order of 17th September 2021, by cancelling the name of the applicant from the title for South Kabras/Bushu/1970, and substituting it with that for Daniel Njoroge Gichara. She has attached a copy of a certificate for official search dated 14th October 2021, showing that Daniel Njoroge Gichara is registered as proprietor for South Kabras/Bushu/1970, since 18th December 2006. In his affidavit, Daniel Njoroge Gichara largely reiterates the averments made by Sabeti Khamete Francis.

4. The parties agreed to canvass the application by way of written submissions. It would appear that only the respondents, Sabeti Khamete Francis and Daniel Njoroge Gichara, filed written submissions. I have read through them and noted their arguments.

5. The orders that I made on 17th September 2021 related to declaration of proceedings herein in Kakamega HCSC No. 640 of 2006 null and void, revocation of the grant made and confirmed herein, cancellation of transactions carried out on the basis of the grant herein, direction that all proceedings henceforth to be conducted in Kakamega HCSC No. 317 of 2003 and closure of the file in Kakamega HCSC No. 640 of 2006. The applicant is concerned primarily with South Kabras/Bushu/1970, in respect of which the criminal court had found he had acquired a title fraudulently. That finding of the criminal court has not been reversed. After the grant in Kakamega HCSC No. 317 of 2003 was confirmed in 2004, South Kabras/Bushu/1970 was registered in the name of Daniel Njoroge Gichara in 2006. By the time the applicant was obtaining his grant herein in 2007 and its confirmation in 2011, Daniel Njoroge Gichara was already the proprietor of South Kabras/Bushu/1970. No orders were made in Kakamega HCSC No. 640 of 2006 to revoke or set aside those made in Kakamega HCSC No. 317 of 2003. The proceedings in Kakamega HCSC No. 640 of 2006 were mounted and maintained by the applicant while he was well aware of the existence and pendency of Kakamega HCSC No. 317 of 2003 and the orders made in that cause.

6. Overall, I am not persuaded that there is a case for ordering stay of the orders that I made on 17th September 2021. Consequently, I find that the application dated 22nd October 2021 is devoid of merit, and I hereby dismiss it. Each party shall bear their own costs. It is so ordered

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8th DAY OF July 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Victor Harry Imbongo, applicant in person.Mr. Otsyeno, instructed by EK Owinyi & Company, Advocates for the respondents.