Taulo Juma Nasongo v Masinde Luketero aka Masinde Nasongo; Henry Simiyu Taulo & Joseph Wanjala Taulo (Applicants) [2019] KEELC 3323 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

CIVIL APPEAL NO. 66 OF 2002.

TAULO JUMA NASONGO...........................................................APPELLANT

VERSUS

MASINDE LUKETERO a.k.a

MASINDE NASONGO...............................................................RESPONDENT

AND

HENRY SIMIYU TAULO..............................1ST APPLICANT/APPELLANT

JOSEPH WANJALA TAULO.......................2ND APPLICANT/APPELLANT

R U L I N G

These are two applications pending herein both by the Applicants HENRY SIMIYU TAULO (1st Applicant) and JOSEPH WANJALA TAULO (2nd Applicant).  The Applicants are acting in person and the first application is dated 24th April 2018 and seeks the main order that the Appellant TAULO JUMA NASONGO be substituted with the two Applicants.  The second application is dated 21st September 2018 and seeks the main prayer that this appeal be reactivated.

The gravamen of both applications is that the 1st Applicant is the Administrator of the Estate of TAULO JUMA NASONGO the Appellant herein who died on 14th April 2008 as per the copy of Death Certificate and on 17th July 2017 the Applicants were issued with Letters of Administration in respect of his Estate.  The same was confirmed on 25th January 2018 and land parcel NO NDIVISI/MAKUSELWA/372 and NDIVISI /MAKUSELWA/640 which appears to be the only properties in the Estate have since been shared between the Applicants.  However, the decree has not been executed hence this application.

Though served with the application, there was no response filed by the Respondent and when the Applicants appeared before me on 22nd January 2018, I directed that I would determine it on the basis of the Supporting Affidavits.

The Applicants are acting in person and this explains the muddle in which they find themselves.  Nonetheless, this Court must do it’s best to determine whatever dispute is placed before it no matter how disjointed it may appear.  Many of the litigants who appear before our Courts are lay persons with no knowledge of drafting pleadings but they too must have their day in Court.

I have looked at the record herein.  The deceased Appellant herein had filed this appeal on 4th October 2002 against the decision of the Western Provincial Appeals Committee which had been adopted by the subordinate Court in BUNGOMA DISTRICT MAGISTRATE’S COURT CASE NO 26 OF 2002 with respect to land parcel NO NDIVISI MAKUSELWA/460.

The Appeal was heard by SERGON J who in a Judgment delivered on 30th July 2004 found that the Appeals Committee had no jurisdiction to determine a dispute relating to ownership of registered land.  So the decision of the said Committee and that of the subordinate Court adopting the award of the Land Disputes Tribunal were set aside.  The Appellant was also granted costs.  Therefore, there is no appeal pending that this Court can re – activate.  The Applicants, it is noted, went further to have the Estate of the Appellant distributed as per the grant issued in BUNGOMA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO 195 OF 2017.

I can see that the Appellant was later able to extract a decree for costs dated 30th September 2004 in the sum of Kshs. 74,725/=.  If what the Applicants want is to execute that decree, I must refer them to the provisions of Section 4(4) of the Limitation of Actions Actwhich provides that:-

“An action may not be brought upon a Judgment after the end of twelve years from the date on which the Judgment was delivered, or (where the Judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a Judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”

The Applicants cannot therefore execute the decree on costs as it was issued in 2004 some 14 years before this application was filed in 2018.  It is statute barred.

With respect to the application seeking to substitute TAULO JUMA NASONGOwith the Applicants, it is clear that TAULO JUMA NASONGO died on 14th April 2008.  The Applicants obtained Grant of Letters of Administration in respect of his Estate on 17th July 2017 in BUNGOMA CHIEF MAGISTRATE’S SUCCESSION CAUSE NO 195 OF 2017.  That was 9 years after the death of TAULO JUMA NASONGO.  No explanation is given for that delay and in any event, the appeal had already abated.  A party cannot be substituted in Court proceedings that have already abated.  The application for substitution must also be dismissed.

The up-shot of the above is that the Applicants’ two applications dated 24th April 2018 and 21st September 2018 are both dismissed.  There shall be no orders as to costs.

Boaz N. Olao.

JUDGE

9th May 2019.

Ruling dated, delivered and signed in Open Court this 9th day of May 2019 at Bungoma

Applicants present

Respondents absent

Boaz N. Olao.

J U D G E

9th May 2019.