Republic v Attorney General, Chief Magistrate's Court, Ktl & Rose Isendi Ombera exparte Sarah Nanyama Opiyo e [2014] KEHC 5279 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT KITALE.

MISC. CIVIL APPLICATION NO. 45 OF 2013.

REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT.

VERSUS

THE HON. ATTORNEY GENERAL )

CHIEF MAGISTRATE'S COURT, KTL) :::::::::::::::::::::::::: RESPONDENT.

ROSE ISENDI OMBERA )

SARAH NANYAMA OPIYO ::::::::::::::::::::::::::::::::::::::::::: EXPARTE.

R U L I N G.

The Notice of Motion dated 24th June, 2013, was filed on 24th June, 2013 pursuant to leave being granted to the applicant, Sarah Nanyama Opiyo, to apply for an order of certiorari to remove into this court and quash the orders made on the 24th April, 2013, by the Ag. Senior Resident Magistrate (second respondent) in Kitale CMC Land Case No. 74 of 1999.

Accordingly, the applicant now seeks an order of certiorari against the said orders of the Magistrate court.

The application is grounded on the facts contained in the applicant's supporting affidavit dated 24th June, 2013 together with her statement of particulars and verifying affidavit dated 23rd May, 2013.

It is averred in the verifying affidavit that the applicant's late husband George Opiyo passed away on the 10th March, 1994 being the owner of a parcel of land described as title No. 5534 situated in Kaplamai location.  That, the applicant, one Wilberforce Asiepi Onguru and one Emily Meare Lugale Onguru thereafter on the 19th September, 1996 obtained the grant of letters of administration respecting the estate of the applicant's late husband from the High Court in Nairobi.The grant is still pending confirmation but in the year 1999, a case was filed against the applicant at a land tribunal by the late George Wilfred Ombeva.  The decision of the tribunal was adopted as a judgment of the court in Kitale CMC Land Case No. 74 of 1999 in which a decree dated 29th July, 2003, was issued.

The applicant contends that she was never sued as the administrator of the estate of her late husband and therefore the decision of the tribunal adopted as a judgment of the court requiring her to take the late George Wilfred Ombeva to the Land Control Board to obtain a land title was erroneous as she was not the inheritor of her late husband's material land in view of the pending succession cause and the fact that she had no capacity to take the late George Wilfred Ombeva to the Land Control Board with regard to land which did not belong to her.

The applicant also contends that the decree of the court was legally unenforceable as the widow of the late George Wilfred Ombeva, Rose Esendi Ombeva (the interested party herein), did not avail to the court a grant of letters of administration respecting the estate of her late husband and therefore had no “locus-standi” in the matter hence the erroneous issuance of the orders of the 24th April, 2013 which orders directed the court's executive officer to sign transfer forms on behalf of the applicant.

The applicant further contends that the vesting of twenty (20) acres to the interested party who had no “locus-standi” was done in excess of the court's jurisdiction resulting in the transmission of a portion of land title No. 5534 to a stranger in a manner contrary to the Succession Law.

It is for all the foregoing reasons that the applicant prays for an order of certiorari while enjoining the Hon. Attorney General and the Chief Magistrate's Court Kitale as the first and second respondents and Rose Esendi Ombeva as the interested party.

The respondents filed their grounds of opposition to the application on 6th May, 2014 through the learned litigation counsel, Mr. Wabwire, who also argued the application on their behalf.

The interested party did not appear for the hearing of the application which was argued on behalf of the applicant by the learned counsel, Mr. Kiarie.

Having considered the application on the basis of the supporting grounds and those in opposition and in the light of the submissions by both sides, it must first and foremost be noted that an order of certiorari is for purposes of quashing a decision already made by an inferior body exercising quasi-judicial or judicial functions if the decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with or for such like reasons.

Herein, the applicant raises issues with the decision made by the magistrate court on the 24th April, 2013.

The said decision is marked as exhibit “No. Sno. 3” and the extracted order as exhibit No. “SNO. 4” in the applicant's verifying affidavit.

The decision was made in Kitale CMC Land Case No. 74 of 1999 in which the interested party was the plaintiff/applicant and the applicant, the defendant/respondent.

Apparently, the decision was prompted by  decision of the Kaplamai Land disputes Tribunal which was adopted by the court as a judgment and a decree issued on the 29th July, 2003 directing the applicant to take the plaintiff (George Wilfred Ombeva) to the Land Control Board to obtain a title deed since the applicant was the inheritor of her late husband's land.

The decree was issued on 29th July, 2003, long after the applicant and others had obtained letters of administration respecting the estate of her late husband including the land in dispute.  It was therefore proper for orders to be obtained against the applicant as one of the administrators of her late husband's estate.  However, she was not expected to implement transfer of the estate property prior to the confirmation of the grant issued to her and others and which confirmation would effect a distribution of the estate among all beneficiaries and defendants.  It was therefore erroneous for the decree dated 29th July, 2003, to describe the applicant as the inheritor of the land in dispute yet the succession process had not been completed.

In the circumstances, the order made by the court on 24th April, 2013, on the basis of the decree issued on 29th July, 2003, was erroneous and made in excess of jurisdiction since the applicant had no legal capacity to transfer the land in dispute and therefore the Executive Officer of the court could not sign or purport to sign transfer forms on her behalf.

The issuance of a vesting order in favour of the interested party as the widow of the late George Wilfred Ombeva who filed a claim against the applicant in the Land Disputes Tribunal did not have any legal basis for reasons stated hereinabove and most importantly, for reason that the interested party did not demonstrate before the magistrate's court that she was the legal representative of her late husband for purposes of the material application and order.  She did not exhibit any grant of letters of administration respecting her late husband's estate in the magistrate's court and also in this court.

Indeed, the magistrate's court was aware that there was a pending succession cause involving the estate of the applicant's late husband and also that the grant issued to the applicant involved two other administrators thereby requiring that all the three administrators do sign transfer forms if at all they had to do so.  In any event, transfer could not be effected prior to the confirmation of the grant and as such the issuance of a vesting order for property which has not been legally distributed following the demise of its legal owner was improper and in excess of jurisdiction.

Consequently, this application is granted in terms of prayer 1 of the Notice of Motion.  Each party shall bear own costs of the application.

[Read and signed this 8th day of May, 2014. ]

J.R. KARANJA.

JUDGE.