Okwanch (Suing as the Administrator of the Estate of George Okwach Aboge, Deceased) v Othiwo alias Owak Othiwo & another [2024] KEELC 13807 (KLR)

Okwanch (Suing as the Administrator of the Estate of George Okwach Aboge, Deceased) v Othiwo alias Owak Othiwo & another (Environment & Land Case 522 of 2015) [2024] KEELC 13807 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13807 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment & Land Case 522 of 2015

SO Okong'o, J

December 11, 2024

Between

Phelgona Akinyi Okwanch (Suing as the Administrator of the Estate of George Okwach Aboge, Deceased)

Plaintiff

and

Maurice Ouru Othiwo alias Owak Othiwo

1st Defendant

John Odiyo Adero

2nd Defendant

Ruling

1. Judgment was entered in this matter on 7th October 2022. The Defendants applied for a stay of execution of the judgment pending appeal to the Court of Appeal. The stay application was dismissed on 22nd November 2023. The Defendants brought another application by a Notice of Motion dated 27th November 2023 in which the Defendants sought; an order directing the District Land Registrar, Kisumu to appear in court as an expert witness to produce the report dated 2nd October 2023, an order that the judgment delivered on 7th October 2022 in favour of the Plaintiff be reviewed and/or varied, and an order directing the District Land Registrar, Kisumu to rectify the register for Kisumu/Dago/250 (the suit property ) by cancelling the name of the Plaintiff as the proprietor of the property and reverting the same to the name of the 1st Defendant who was the original proprietor thereof.

2. In a ruling delivered on 4th July 2024, the court found no merit in the Defendants’ second application and dismissed the same with costs. The Defendants were dissatisfied with the ruling and filed a notice of their intention to appeal against the same to the Court of Appeal on 1st August 2024. The Defendants after that brought an application by way of a Notice of Motion dated 1st August 2024 seeking a stay of execution of the said ruling/order made on 4th July 2024, and an order for the maintenance of status quo. The court considered the application and dismissed the same in a ruling delivered on 2nd October 2024.

3. What is before me is yet another application brought by the Defendants. The application was brought by Notice of Motion dated 11th October 2024 seeking a stay of proceedings in this suit pending the hearing and determination of Nairobi High Court Succession Cause No. 2032 of 2011(hereinafter referred to as “the Nairobi case”). The application was brought on the ground that an application seeking the revocation of Grant of Letters of Administration issued in the Nairobi case through which the Plaintiff acquired the suit property was due for hearing on 14th October 2024 and that the application had high chances of success. The Defendants averred that if the said application succeeded, the title held by the Plaintiff herein would be nullified. The Defendants averred that the Nairobi case would be rendered nugatory should the Plaintiff proceed with the eviction of the Defendants from the suit property. The Plaintiff did not respond to the application.

4. I have considered the Defendants’ application together with the affidavit filed in support thereof. The Defendants’ application was brought under Order 42 Rule 4 of the Civil Procedure Rules whose relevance I am unable to decipher. As I mentioned earlier, there have been two previous applications for a stay of execution which were dismissed by the court. The stay sought by the Defendants is not sought pending the hearing of an appeal before the Court of Appeal or some application before this court. The Defendants have asked this court to stay its proceedings pending the hearing and determination of proceedings pending in the High Court. I have perused the application that has been lodged by the Defendants in the High Court. I am not convinced that the determination of the application will have any effect on this suit which has already been fully heard and determined. The Defendants have not persuaded me that the High Court will be able to overturn the judgment of this court delivered on 7th October 2022 and the ruling of the court delivered on 4th July 2024 on the Defendants’ application for review. I therefore find no merit in the Defendants’ Notice of Motion application dated 11th October 2024. The application is dismissed with no order as to costs since it was not defended.

DELIVERED AND DATED AT KISUMU ON THIS 11TH DAY OF DECEMBER 2024S. OKONG’OJUDGERuling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:Mr. Ragot for the PlaintiffMr. Sala for the DefendantsMs. J. Omondi-Court Assistant