J U D G M E N T
1. ALICE AKINYI AWUOR (the Petitioner herein) is a pro se litigant. A very common phenomenon in our rural Courts. She has approached this Court vide her “home made” Petition dated 18th January 2024 and filed on 19th January 2024 in which she has impleaded THE CHAIRMAN OF BUTULA DIVISIONAL LAND CONTROL BOARD, THE LAND CONTROL BOARD BUTULA DIVISION, THE CABINET SECRETARY MINISTRY OF INTERIOR, THE CABINET SECRETARY MINISTRY OF LAND, THE HON. ATTORNEY GENERAL (the 1st to 5th Respondents respectively) and PETER OUMA OGUTU (the Interested Party). The Petition is premised on Articles 10, 22(1) (3), 23 (1) (3), 27 (1) – (5), 40 (1), (3), 47 and 165 (3) (b) (d)(ii) of the Constitution, Sections 3, 4, (2) (3), 6, 7 and 9 of the Fair Administration Actions Act, Sections 2(1), 45, 47, 48(1), 50(1), 66(a) and 83(g) of the Law of Succession Act, Sections 61, 62 and 94 (4) (5) of the Land Registration Act and Sections 6(1) (3), 8(2), 9(2), 11, 13 and 16 of the Land Control Board Act.
2. The Petitioner prays for the following orders:
a) An interpretation be made as to whether what is said in Section 8(2) of the Land Control Board Act cap 302 Laws of Kenya that the Board’s decision shall not be questioned in any Court at this moment when there is no Provisional Land Control Board to review such decision is inconsistent or in contravention of Articles 25(c) and 50(1) of the Constitution of Kenya resulting in the denial of Article 40 as against the Petitioner.
b) An interpretation be made as to whether the fact that Provisional Land Control Board to review the administrative actions of the Divisional Land Control Board do not exist, the Petitioner has exhausted the mechanism as provided for by Section 11 of the Land Control Board Act cap 302 Laws of Kenya of which the Petitioner is properly before this Honourable Court in terms of Article 22(1) of the Constitution as read with Section 9(2) of the Fair Administrative Actions Act.
c) A declaration be made that the refusal by the 1st Respondent to sign and give to the Petitioner the requisite consent is by ulterior motive or purpose calculated to defeat the transmission of the deceased’s estate by operation of the Law of Succession and deny the Petitioner and her children the right to own the property in infringement of Articles 27 and 40 of the Constitution of Kenya.
d) A declaration be made that the refusal by the 1st Respondent to sign the requisite consent after it had been approved by the Board is un-constitutional and un-lawful contrary to Section 9 and Regulation 3 both of the Land Control Board Act cap 302 Laws of Kenya and is null and void.
e) A declaration or directions be made that the 1st Respondent do sign and give the Petitioner the requisite consent as has been approved by the Board on 13th October 2022.
f) A declaration be made that a permanent injunction is hereby issued restraining the Interested Party from entering or interfering with the portion of 4.75 acres as confirmed by the Succession Court to the Petitioner.
g) A declaration or direction be made that the Petitioner be compensated for the general damages not exceeding Kshs.800,000 as the Court may deem just being caused to her by unlawful refusal by the 1st Respondent to sign and give her the requisite consent and by prevention by the Interested Party for taking the whole land not allowing the Petitioner to use her portion of 4.75 acres.
h) Any other order be made as this Honourable Court deems just to make.
3. The basis of the Petition is that the Petitioner is the only child of REMUJUS AWUOR AKULA who was the brother of MUKABI AKULA the deceased registered proprietor of the suit land. That the Petitioner and her father have always lived on a portion of the suit land measuring 4.75 acres until 1999 when the deceased passed away. That they continued to live on the suit land until 2006 when her father REMUJUS AWUOR AKULA also died. She remained on the suit land cultivating the 4.75 acres.
4. Later, however, the Interested Party who is a grandson of the deceased stopped her from utilizing the 4.75 acres and chased her away. The Petitioner complained to her District Officer who advised her to go to Court. The Petitioner filed BUSIA CHIEF MAGISTRATE SUCCESSION CAUSE NO E040 of 2021 and obtained a Grant by which the portion of the suit land measuring 4.75 acres was transferred to her. Having obtained the Grant, the Petitioner moved to the BUTULA LAND CONTROL BOARD for the consent to petition the suit land to enable her obtained a title deed for her portion. However, the said Board which is the 1st Respondent did not grant her application and instead, it’s officers asker her to pay Kshs.30,000 before she could get the consent. That conduct is calculated to defeat the Petitioner’s fundamental rights under the law.
5. The petition is supported by the Petitioner’s affidavit of even dated and which is basically a rehash of what is contained in the Petition. She has also annexed the following documents to the affidavit:
1) Copy of Limited Grant issued to her in respect to the Estate of REMUJUS AWUOR AKULA in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E040 of 2021.
2) Copy of citation by the Petitioner against the Interested Party to accept or refuse Limited Grant of Letters of Administration in respect to the Estate of the deceased in CITATION CAUSE NO 85 of 2019.
3) Copy of Grant of Letters of Administration intestate issued to the Petitioner in respect to the Estate of the deceased in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E040 of 2021.
4) Copy of certificate of confirmed Grant issued to the Petitioner in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO. E40 of 2021 on 30th August 2022 through which a portion of the suit land measuring 4.75 acres was transmitted to her.
5) Copy of transfer of land documents.
6) Copy of certificate of death of the deceased MUKABI AKULA.
7) Copy of certificate of death of the Petitioner’s father REMUJUS AWUORI AKULA.
8) Copy of Identity Card for the Petitioner.
9) Copy of certificate of official search for the land parcel NO MARACH/ELUKHARI/708. In the name of the deceased MUKABI AKULA.
10) Copy of the certificate of official search for the land parcel NO MARACH/ELUKHARI/708 registered in the name of the Petitioner and 18 others.
11) Mutation Form for title NO MARACH/ELUKHARI/708.
12) Copy of receipts.
13) Copy of Court order issued in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E040 of 2021 on 12th October 2022 directing that the Petitioner be registered as proprietor of the portion measuring 4.75 acres out of the land parcel NO MARACH/ELUKHARI/708.
14) Copy of a letter of complaint addressed to the Cabinet Secretary Ministry of land by the Petitioner with regard to the conduct of the Chairperson of the BUTULA LAND CONTROL BOARD one MR DAVID WABWIRE in demanding Kshs.30,000 before approving her application.
15) Copy of letter of complaint written to the CHAIRPERSON BUTULA LAND CONTROL BOARD.
16) Application for consent of the Land Control Board to partition the land parcel NO MARACH/ELUKHARI/708.
17) Copy of Kenya Gazette Notice NO 8257 in respect to the Petitioner’s application for letters of Administration in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E40 of 2021.
18) Copy of Letter addressed to the CHAIRPERSON BUTULA LAND CONTROL BOARD by the Petitioner.
6. Only the 1st Respondent filed a response through PAMELA A. OTIENO the Deputy County Commissioner Butula who is also the Chair of the 2nd Respondent. I did not see any response filed by the 3rd, 4th and 5th Respondents or the Interested Party although the Senior State Counsel MR JUMA COLLINS filed submissions on behalf of all the Respondents. Having not filed any response to the Petition, I do not see on what ground the Senior State Counsel could file submissions on behalf of the 3rd to 5th Respondents. However, I think the response by the 1st Respondent suffices for purposes of this Judgment as will soon become clear.
7. In her replying affidavit dated 1st March 2024, PAMELA A. OTIENO has deposed, inter alia, that she is the current chair person of the 2nd Respondent who are strangers to this Petition. That the Petitioner and 18 others presented to the 2nd Respondent an application for the partition of the suit land but it was deferred so that the certificate of search could be availed. That the Petitioner later presented some application together with a confirmed Grant but which was signed by the Petitioner only yet she holds the land in common with 18 other proprietors. That the other 18 co-tenants had not signed the application as required. It was therefore hard for the 2nd Respondent to grant the consent the application was therefore deferred to 8th December 2022 to give the proprietor time to get the other proprietors in common to sign the application or have it signed by the Executive Officer of this Court on behalf of the other co-tenants. Alternatively, the Petitioner was advised to apply to the Land Registrar to dispense with the consent of the other co-tenants under Section 94 of the Land Registration Act. In the circumstances, the suit against the 2nd Respondent is incompetent, un-sustainable and an abuse of the process of this Court. It should be dismissed with costs since the Petitioner’s rights have not been violated.
8. The following documents are annexed to the 1st Respondent’s replying affidavit:
1) Copy of application for consent by the Petitioner to sub-divide the land parcel NO MARACHI/ELUKHARI/708.
2) Copy of Petitioner’s Identity Card.
3) Copy of Petitioner’s PIN.
4) Copy of confirmed Grant issued to the Petitioner in BUSIA CHIEF MAGISTRATE’S SUCCESSION CAUSE NO E040 of 2021.
5) Order issued to the Petitioner in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E040 of 2021 directing that the Petitioner may be registered as the proprietor of a portion of land measuring 4.75 acres out of the land parcel NO MARACH/ELUKHARI/708.
9. The petitioner filed a further affidavit dated 9th April 2024 in response to that replying affidavit. She deponed, inter alia, that the 1st Respondent is being dishonest and that at no time did the 1st Respondent refer her to the Land Registrar. Rather, that it was the Land Registrar who informed her that the consent of the Land Control Board as well as the transfer form signed by the other co-tenants were both required. That she was also advised that should the other co-tenants refuse to sign, a Court order authorising the Executive Officer to do so on behalf of the co-tenants would suffice. That the Land Registrar informed her that since the co-tenants had not appealed the orders of the Succession Cause, there was no reason why the Land Registrar should deny her the consent.
10. The Petition has been canvassed by way of written submissions. These have been filed both by the Petitioner acting in person and by MR JUMA COLLINS SENIOR STATE COUNSEL on behalf of the 1st to 5th Respondents. The Interested Party did not file any response to the Petition.
11. I have considered the Petition, the reply by the 1st Respondent and the submissions.
12. The Petitioner, as already stated above, is acting in person. From what I can discern in the Petition, the Petitioner is seeking the following substantive remedies:
1) An order that the 1st Respondent signs the necessary consent to partition the land parcel NO MARACHI/ELUKHARI/708 to enable the Petitioner have the portion measuring 4.75 acres registered in her name.
2) An order of permanent injunction restraining the Interested Parties from interfering with that portion.
3) General damages not exceeding Kshs.800,000.
13. With regard to prayer NO 1, it is clear, as deposed in paragraph 11 of the 1st Respondent’s replying affidavit signed by PAMELA A. OTIENO, that under Section 94 of the Land Registration Act, the Petitioner was at liberty to approach the Land Registrar to partition the suit land notwithstanding the lack of consent by the other co-tenants. Section 94(1) and (2) of the Land Registration Act which is the applicable law provides that:
94(1) “Any of the tenants in common way, with the consent of all the tenants in common, make an application in the prescribed form, to the Registrar for the partition of land occupied in common and subject to the provisions of this Act and of any other written law applying to a requiring consent to a sub-division of land and of any covenants or conditions in a certificate of title or certificate of lease, the registrar shall effect the partition of the land in accordance with the agreements of the tenants in common.
An application may be made to the Registrar in the prescribed form for an order for the partition of land owned in common by –
(a) Any one or more of the tenants in common without the consent of all the tenants in common; or
(b) Any person in whose favour an order has been made for the sale of an undivided share in the land in execution of a decree.”
Section 94(3) (4) and (5) of the same Act gives guidelines as to what the Registrar shall consider in making that decision as well as an order for compensation to those co-tenants who may not have agreed to the partition. The decision of the Registrar is subject to review by this Court should any co-tenant feel aggrieved.
14. The 1st Respondent’s advise to the Petitioner was therefore well founded. It is not clear why the Petitioner did not take it. In any case, even if the Petitioner required the other co-tenants to sign any documents, she already had an order issued by the Magistrate Court on 17th October 2022 in Succession Cause NO E040 of 2021 authorizing the Court Administrator of this Court to sign any necessary documents.
15. With regard to prayer NO 2, the Petitioner has averred that following the demise of her father the deceased herein, the Interested Party has chased her from the suit land and prevented her from utilizing the 4.75 acres which is her entitlement therein. The Interested Party did not file any response in opposition to the Petition. That prayer is merited and I allow it.
16. The claim for Kshs.800,000 which the Petitioner seeks as compensation is really a claim for special damages although couched as general damages. This claim is against the 1st Respondent for refusing to grant the Petitioner the consent. Given the response of the 1st Respondent I do not see the justification for granting the Petitioner that prayer. The same is declined.
17. On the issue of costs, the order that commends itself in the circumstances of this case it to order each party to meet their own costs.
18. Ultimately therefore and having considered this Petition, this Court hereby issues the following disposal orders:
1) The Land Registrar Busia shall within 30 days of service of this Judgment upon her consider the Petitioner’s application for the partitioning of and registration of a portion measuring 4.75 acres out of the land parcel NO MARACHI/ELUKHARI/708 in her name.
2) The Deputy Registrar shall be at liberty upon request to sign all the necessary documents to facilitate the registration of that portion in the name of the Petitioner.
3) Thereafter, the Interested Party and all other persons acting under him shall be permanently injuncted from interfering with the Petitioner’s portion measuring 4.75 acres.
4) The parties shall each meet their own costs.
BOAZ N. OLAO
JUDGE
26TH SEPTEMBER 2024
Judgment dated, signed and delivered on this 26th day of September 2024 by way of electronic mail as was advised to the parties.
Right of Appeal.
BOAZ N. OLAO
JUDGE
26TH SEPTEMBER 2024
1. ALICE AKINYI AWUOR (the Petitioner herein) is a pro se litigant. A very common phenomenon in our rural Courts. She has approached this Court vide her “home made” Petition dated 18th January 2024 and filed on 19th January 2024 in which she has impleaded THE CHAIRMAN OF BUTULA DIVISIONAL LAND CONTROL BOARD, THE LAND CONTROL BOARD BUTULA DIVISION, THE CABINET SECRETARY MINISTRY OF INTERIOR, THE CABINET SECRETARY MINISTRY OF LAND, THE HON. ATTORNEY GENERAL (the 1st to 5th Respondents respectively) and PETER OUMA OGUTU (the Interested Party). The Petition is premised on Articles 10, 22(1) (3), 23 (1) (3), 27 (1) – (5), 40 (1), (3), 47 and 165 (3) (b) (d)(ii) of the Constitution, Sections 3, 4, (2) (3), 6, 7 and 9 of the Fair Administration Actions Act, Sections 2(1), 45, 47, 48(1), 50(1), 66(a) and 83(g) of the Law of Succession Act, Sections 61, 62 and 94 (4) (5) of the Land Registration Act and Sections 6(1) (3), 8(2), 9(2), 11, 13 and 16 of the Land Control Board Act.
2. The Petitioner prays for the following orders:
a) An interpretation be made as to whether what is said in Section 8(2) of the Land Control Board Act cap 302 Laws of Kenya that the Board’s decision shall not be questioned in any Court at this moment when there is no Provisional Land Control Board to review such decision is inconsistent or in contravention of Articles 25(c) and 50(1) of the Constitution of Kenya resulting in the denial of Article 40 as against the Petitioner.
b) An interpretation be made as to whether the fact that Provisional Land Control Board to review the administrative actions of the Divisional Land Control Board do not exist, the Petitioner has exhausted the mechanism as provided for by Section 11 of the Land Control Board Act cap 302 Laws of Kenya of which the Petitioner is properly before this Honourable Court in terms of Article 22(1) of the Constitution as read with Section 9(2) of the Fair Administrative Actions Act.
c) A declaration be made that the refusal by the 1st Respondent to sign and give to the Petitioner the requisite consent is by ulterior motive or purpose calculated to defeat the transmission of the deceased’s estate by operation of the Law of Succession and deny the Petitioner and her children the right to own the property in infringement of Articles 27 and 40 of the Constitution of Kenya.
d) A declaration be made that the refusal by the 1st Respondent to sign the requisite consent after it had been approved by the Board is un-constitutional and un-lawful contrary to Section 9 and Regulation 3 both of the Land Control Board Act cap 302 Laws of Kenya and is null and void.
e) A declaration or directions be made that the 1st Respondent do sign and give the Petitioner the requisite consent as has been approved by the Board on 13th October 2022.
f) A declaration be made that a permanent injunction is hereby issued restraining the Interested Party from entering or interfering with the portion of 4.75 acres as confirmed by the Succession Court to the Petitioner.
g) A declaration or direction be made that the Petitioner be compensated for the general damages not exceeding Kshs.800,000 as the Court may deem just being caused to her by unlawful refusal by the 1st Respondent to sign and give her the requisite consent and by prevention by the Interested Party for taking the whole land not allowing the Petitioner to use her portion of 4.75 acres.
h) Any other order be made as this Honourable Court deems just to make.
3. The basis of the Petition is that the Petitioner is the only child of REMUJUS AWUOR AKULA who was the brother of MUKABI AKULA the deceased registered proprietor of the suit land. That the Petitioner and her father have always lived on a portion of the suit land measuring 4.75 acres until 1999 when the deceased passed away. That they continued to live on the suit land until 2006 when her father REMUJUS AWUOR AKULA also died. She remained on the suit land cultivating the 4.75 acres.
4. Later, however, the Interested Party who is a grandson of the deceased stopped her from utilizing the 4.75 acres and chased her away. The Petitioner complained to her District Officer who advised her to go to Court. The Petitioner filed BUSIA CHIEF MAGISTRATE SUCCESSION CAUSE NO E040 of 2021 and obtained a Grant by which the portion of the suit land measuring 4.75 acres was transferred to her. Having obtained the Grant, the Petitioner moved to the BUTULA LAND CONTROL BOARD for the consent to petition the suit land to enable her obtained a title deed for her portion. However, the said Board which is the 1st Respondent did not grant her application and instead, it’s officers asker her to pay Kshs.30,000 before she could get the consent. That conduct is calculated to defeat the Petitioner’s fundamental rights under the law.
5. The petition is supported by the Petitioner’s affidavit of even dated and which is basically a rehash of what is contained in the Petition. She has also annexed the following documents to the affidavit:
1) Copy of Limited Grant issued to her in respect to the Estate of REMUJUS AWUOR AKULA in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E040 of 2021.
2) Copy of citation by the Petitioner against the Interested Party to accept or refuse Limited Grant of Letters of Administration in respect to the Estate of the deceased in CITATION CAUSE NO 85 of 2019.
3) Copy of Grant of Letters of Administration intestate issued to the Petitioner in respect to the Estate of the deceased in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E040 of 2021.
4) Copy of certificate of confirmed Grant issued to the Petitioner in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO. E40 of 2021 on 30th August 2022 through which a portion of the suit land measuring 4.75 acres was transmitted to her.
5) Copy of transfer of land documents.
6) Copy of certificate of death of the deceased MUKABI AKULA.
7) Copy of certificate of death of the Petitioner’s father REMUJUS AWUORI AKULA.
8) Copy of Identity Card for the Petitioner.
9) Copy of certificate of official search for the land parcel NO MARACH/ELUKHARI/708. In the name of the deceased MUKABI AKULA.
10) Copy of the certificate of official search for the land parcel NO MARACH/ELUKHARI/708 registered in the name of the Petitioner and 18 others.
11) Mutation Form for title NO MARACH/ELUKHARI/708.
12) Copy of receipts.
13) Copy of Court order issued in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E040 of 2021 on 12th October 2022 directing that the Petitioner be registered as proprietor of the portion measuring 4.75 acres out of the land parcel NO MARACH/ELUKHARI/708.
14) Copy of a letter of complaint addressed to the Cabinet Secretary Ministry of land by the Petitioner with regard to the conduct of the Chairperson of the BUTULA LAND CONTROL BOARD one MR DAVID WABWIRE in demanding Kshs.30,000 before approving her application.
15) Copy of letter of complaint written to the CHAIRPERSON BUTULA LAND CONTROL BOARD.
16) Application for consent of the Land Control Board to partition the land parcel NO MARACH/ELUKHARI/708.
17) Copy of Kenya Gazette Notice NO 8257 in respect to the Petitioner’s application for letters of Administration in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E40 of 2021.
18) Copy of Letter addressed to the CHAIRPERSON BUTULA LAND CONTROL BOARD by the Petitioner.
6. Only the 1st Respondent filed a response through PAMELA A. OTIENO the Deputy County Commissioner Butula who is also the Chair of the 2nd Respondent. I did not see any response filed by the 3rd, 4th and 5th Respondents or the Interested Party although the Senior State Counsel MR JUMA COLLINS filed submissions on behalf of all the Respondents. Having not filed any response to the Petition, I do not see on what ground the Senior State Counsel could file submissions on behalf of the 3rd to 5th Respondents. However, I think the response by the 1st Respondent suffices for purposes of this Judgment as will soon become clear.
7. In her replying affidavit dated 1st March 2024, PAMELA A. OTIENO has deposed, inter alia, that she is the current chair person of the 2nd Respondent who are strangers to this Petition. That the Petitioner and 18 others presented to the 2nd Respondent an application for the partition of the suit land but it was deferred so that the certificate of search could be availed. That the Petitioner later presented some application together with a confirmed Grant but which was signed by the Petitioner only yet she holds the land in common with 18 other proprietors. That the other 18 co-tenants had not signed the application as required. It was therefore hard for the 2nd Respondent to grant the consent the application was therefore deferred to 8th December 2022 to give the proprietor time to get the other proprietors in common to sign the application or have it signed by the Executive Officer of this Court on behalf of the other co-tenants. Alternatively, the Petitioner was advised to apply to the Land Registrar to dispense with the consent of the other co-tenants under Section 94 of the Land Registration Act. In the circumstances, the suit against the 2nd Respondent is incompetent, un-sustainable and an abuse of the process of this Court. It should be dismissed with costs since the Petitioner’s rights have not been violated.
8. The following documents are annexed to the 1st Respondent’s replying affidavit:
1) Copy of application for consent by the Petitioner to sub-divide the land parcel NO MARACHI/ELUKHARI/708.
2) Copy of Petitioner’s Identity Card.
3) Copy of Petitioner’s PIN.
4) Copy of confirmed Grant issued to the Petitioner in BUSIA CHIEF MAGISTRATE’S SUCCESSION CAUSE NO E040 of 2021.
5) Order issued to the Petitioner in BUSIA CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO E040 of 2021 directing that the Petitioner may be registered as the proprietor of a portion of land measuring 4.75 acres out of the land parcel NO MARACH/ELUKHARI/708.
9. The petitioner filed a further affidavit dated 9th April 2024 in response to that replying affidavit. She deponed, inter alia, that the 1st Respondent is being dishonest and that at no time did the 1st Respondent refer her to the Land Registrar. Rather, that it was the Land Registrar who informed her that the consent of the Land Control Board as well as the transfer form signed by the other co-tenants were both required. That she was also advised that should the other co-tenants refuse to sign, a Court order authorising the Executive Officer to do so on behalf of the co-tenants would suffice. That the Land Registrar informed her that since the co-tenants had not appealed the orders of the Succession Cause, there was no reason why the Land Registrar should deny her the consent.
10. The Petition has been canvassed by way of written submissions. These have been filed both by the Petitioner acting in person and by MR JUMA COLLINS SENIOR STATE COUNSEL on behalf of the 1st to 5th Respondents. The Interested Party did not file any response to the Petition.
11. I have considered the Petition, the reply by the 1st Respondent and the submissions.
12. The Petitioner, as already stated above, is acting in person. From what I can discern in the Petition, the Petitioner is seeking the following substantive remedies:
1) An order that the 1st Respondent signs the necessary consent to partition the land parcel NO MARACHI/ELUKHARI/708 to enable the Petitioner have the portion measuring 4.75 acres registered in her name.
2) An order of permanent injunction restraining the Interested Parties from interfering with that portion.
3) General damages not exceeding Kshs.800,000.
13. With regard to prayer NO 1, it is clear, as deposed in paragraph 11 of the 1st Respondent’s replying affidavit signed by PAMELA A. OTIENO, that under Section 94 of the Land Registration Act, the Petitioner was at liberty to approach the Land Registrar to partition the suit land notwithstanding the lack of consent by the other co-tenants. Section 94(1) and (2) of the Land Registration Act which is the applicable law provides that:
94(1) “Any of the tenants in common way, with the consent of all the tenants in common, make an application in the prescribed form, to the Registrar for the partition of land occupied in common and subject to the provisions of this Act and of any other written law applying to a requiring consent to a sub-division of land and of any covenants or conditions in a certificate of title or certificate of lease, the registrar shall effect the partition of the land in accordance with the agreements of the tenants in common.
An application may be made to the Registrar in the prescribed form for an order for the partition of land owned in common by –
(a) Any one or more of the tenants in common without the consent of all the tenants in common; or
(b) Any person in whose favour an order has been made for the sale of an undivided share in the land in execution of a decree.”
Section 94(3) (4) and (5) of the same Act gives guidelines as to what the Registrar shall consider in making that decision as well as an order for compensation to those co-tenants who may not have agreed to the partition. The decision of the Registrar is subject to review by this Court should any co-tenant feel aggrieved.
14. The 1st Respondent’s advise to the Petitioner was therefore well founded. It is not clear why the Petitioner did not take it. In any case, even if the Petitioner required the other co-tenants to sign any documents, she already had an order issued by the Magistrate Court on 17th October 2022 in Succession Cause NO E040 of 2021 authorizing the Court Administrator of this Court to sign any necessary documents.
15. With regard to prayer NO 2, the Petitioner has averred that following the demise of her father the deceased herein, the Interested Party has chased her from the suit land and prevented her from utilizing the 4.75 acres which is her entitlement therein. The Interested Party did not file any response in opposition to the Petition. That prayer is merited and I allow it.
16. The claim for Kshs.800,000 which the Petitioner seeks as compensation is really a claim for special damages although couched as general damages. This claim is against the 1st Respondent for refusing to grant the Petitioner the consent. Given the response of the 1st Respondent I do not see the justification for granting the Petitioner that prayer. The same is declined.
17. On the issue of costs, the order that commends itself in the circumstances of this case it to order each party to meet their own costs.
18. Ultimately therefore and having considered this Petition, this Court hereby issues the following disposal orders:
1) The Land Registrar Busia shall within 30 days of service of this Judgment upon her consider the Petitioner’s application for the partitioning of and registration of a portion measuring 4.75 acres out of the land parcel NO MARACHI/ELUKHARI/708 in her name.
2) The Deputy Registrar shall be at liberty upon request to sign all the necessary documents to facilitate the registration of that portion in the name of the Petitioner.
3) Thereafter, the Interested Party and all other persons acting under him shall be permanently injuncted from interfering with the Petitioner’s portion measuring 4.75 acres.
4) The parties shall each meet their own costs.
BOAZ N. OLAO
JUDGE
26TH SEPTEMBER 2024
Judgment dated, signed and delivered on this 26th day of September 2024 by way of electronic mail as was advised to the parties.
Right of Appeal.
BOAZ N. OLAO
JUDGE
26TH SEPTEMBER 2024