Nelson Simiyu Ngai v Nelson Simiyu Ngai [2015] KEHC 2630 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEAL NO. 51 OF 2014

NELSON SIMIYU NGAI ………….............................................................……. PLAINTIFF/APPLICANT

VERSUS

AGNES NASIMIYU ………...…………..............................................…… DEFENDANT/RESPONDENT

JUDGEMENT

[1]     The appeal herein arises out of a judgement made by M. Agutu Resident Magistrate on 26th May 2014.

The grounds of appeal filed by the applicant were that the respondent was not a legal administratrix of the registered owner,  that there was an admission that the respondent processed title documents in 1997 long after the demise of the registered owner.  Further that the trial magistrate erred when she held that failure to call the land registrar was a fatal error and that she failed to appreciate that land parcel No. Ndivisi/Ndivisi/221 was never sub divided or alienated among other grounds.

[2]     The respondent argued that the position of the 1st respondent was known by the appellant right from the lower court and no issues were taken then, that, that issue cannot be taken on appeal.  It was argued by the respondent that land parcel Ndivisi/Ndivisi/221 was sub divided into Ndivisi/Ndivisi/1120 and 1121 and the former ceased to exist.  That by the time the appellant filed a Succession Cause in Nairobi over the original number and he got the Letters of Administration the said land had ceased to exist. The appellant argues he has   title to Ndivisi/Ndivisi/1121 and she produced the same to court.  She said she had been on the land since 1971 with her family.

[3]     It was not in dispute that the case in the lower court was not for determination of ownership of land but for an injunction against the respondents not to bury the remains of her daughter.

Both the appellant and respondent were in agreement that there was a case for determination of which title was genuine in Bungoma High Court Civil Case No. 78 of 2001 still pending in court.  The trial magistrate held that both parties produced original titles and that, the Land Registrar was not called to shed light on which title was genuine.  She was therefore unable to say which title was genuine against the other.

She considered the fact that respondent had been on the land for a long period of time and has a house constructed on the land.  She then allowed the defendant to bury the remains of her daughter on the land.

[4]     I am unable to fault the findings of the trial magistrate and her reasoning.  There is a case pending in this court for determination of which title deed is genuine.  This is the case that will resolve this dispute.  Parties should actually have first tracked this case for hearing.

[5]     Burying a dead body on any piece of land would not give any proprietary rights on any one.  Should the respondent in this case be found to have buried on a piece of land that does not belong to her, there are other remedies including exhumation that are open to any aggrieved party.  For now, the respondent holds a certificate in Ndivisi/Ndivisi/1121 owned by her deceased husband, which is still valid and which gives her every right to bury her daughter.

The learned magistrate did not err, nor did she act under wrong principles of law.

I find this appeal without merit and I dismiss it with costs.

Dated at Bungoma this 30th day of  September 2015

S. MUKUNYA   -  JUDGE