JOSEPHINE AKWARE v NICHOLAS IKOL ADUNGO AND PATRICK BARASA OMUSUNGU [2006] KEHC 153 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE HIGH COURT
AT BUSIA
Civil Suit 9 of 2004
JOSEPHINE AKWARE:::::::::::::::::::::::::::::::: PLAINTIFF
VS
1. NICHOLAS IKOL ADUNGO ) :::::::::::::::: 1ST DEFENDANT
2. PATRICK BARASA OMUSUNGU)::::::::::::::2ND DEFENDANT
REASONS FOR RULING
On 28th November, 2006, I heard submissions on behalf of counsel for the defendant and the plaintiff in person. I struck out the suit and reserved my reasons for doing so, which I now give but first the background:
By a plaint dated 26th April, 2004 the plaintiff sought judgment against the defendant for:
a)The ruling/orders of the registration title sub-division No. S.TESO/CHAKOL/1166 if any created thereof in the names of the purchaser’s 1st and 2nd defendant to pave way for succession by the plaintiff the rightful administrator of the estate of the deceased.
b)That the acts of fraudulent and forgery means by the defendants be declared null and void forthwith and if any title deeds issued to them be cancelled forthwith and the original title be maintained until succession process is completed by the plaintiff and restrictions of this court be placed on this land until the heading and process of this suit.
c)Any other relief which this Honourable Court may deem fit and just to grant.
d)Costs of this suit.
e)Any other relief this Honourable Court may deem fit and just to grant.
By a statement of defence dated 21st June, 2004, the defendant:
a)denied the fraud;
b)raised the issue of lack of locus-standi;
c)and prayed that the suit may be struck out.
When the matter came up for hearing, the defendant raised preliminary objection vide a notice thereof dated 11th October, 2006 on eight (8) grounds:
1THAT the suit herein is statute barred under the Limitation of Actions Act, Cap 22 of the Laws of Kenya.
2THAT the plaintiff herein lacks capacity to sue in law in the matter herein.
3THAT the plaintiff herein has failed to establish her interest in the suit property hence is a busy body and has no locus standi to sue herein.
4THAT the plaintiff is guilty of delay and/or laches, as the suit property was transferred to the 1st and 2nd defendants as purchasers for value in 1996 by a court order upon the issue of letters of administration for one Xaverio Ekakoro.
5THAT registration of the 1st and 2nd defendant as first proprietors of land by the court in 1984 vested in them absolute ownership rights and privileges over the suit property, the said rights are indefeasible and the proprietors are free from any other interests whatsoever under the Registered Land Act, Cap 300, Laws of Kenya.
6THAT the land parcel title number TESO/CHAKOL/1166 does not exist hence the plaintiff’s claim cannot stand in law.
7THAT the plaintiff’s suit is defective in the face of the law as the plaintiff is purporting to sue the 2nd defendant who is deceased.
8 THAT the suit herein is an abuse of the court process and should be struck out with costs.
It was argued, on behalf of the defendant, that the plaintiff lacks the requisite capacity to bring the suit by reason of having not taken out letters of administration of the estate of Xaverio Kakoro.
Secondly, that the suit is statute barred by reason of the provisions of Limitation of Actions Act [Cap 22 Laws of Kenya] in that the contract and registration of the suit property was in 1984 and the transfer was in 1996. That this suit was filed on 24th May, 2004, a period of over 20 years.
Thirdly, that the plaintiff lacks the legal or equitable interest in the suit property. The subject property at all material times belonged to Xaverio Karani Kakoro who sold it during his lifetime.
Fourthly, that the plaintiff had sued the 2nd defendant who passed on before the institution of the suit.
For the plaintiff, it was conceded that she had not taken out letters of administration.
Once it is conceded that the plaintiff had not taken out letters of administration at the time of filing this suit, that in itself is an admission that the suit was brought without locus-standi (See TROUISTIK UNION INTERNATIONAL INGIRIDURSULA HEINZ v. MRS JANE MBEYU & MRS ALICE MBEYU CIVIL APPEAL NO.145/90. [C. A].
That is the main reason why I struck out the suit.
DATED and DELIVERED at BUSIA this 22nd day of October, 2006.
N.R.O. OMBIJA
JUDGE
Mr. Ashioya for Onsongo for the applicant.
Mr. Angima for Aluoch Awino for the respondent.