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JudgmentDOROTHY ACHIENG OJWANG VS MARGARET ANYANGO OWINO3 min read

DOROTHY ACHIENG OJWANG VS MARGARET ANYANGO OWINO

High Court at Migori High Court · · Anne Ong'injo


  1. This is an Appeal from the Judgment of Hon. D. Odhiambo (CM) in Migori CMC Succession Cause No. 135 of 2018 in the estate of Elizaphan Otondo Ombero which comprised of parcels of L. R. Suna East / Wasweta 1 / 3191 and 7152.
  2. The trial magistrate found that the Objector’s and Interested Party’s interests as purchaser from the deceased ought to have been taken into account by the Petitioners as liabilities of the estate at the time of distribution.
  3. The trial Magistrate distributed LR Suna East / Wasweta 1 / 3191 to Margret Anyango Owino 0.12Ha and Nicholas Onyango Odongo 50 x 100ft.   The remainder to be registered in the  name of the Petitioners.
  4. The Petitioner was ordered to sign the necessary documents for the successful registration of portions of LR Suna East / Wasweta 1 / 3191 in favour of the Objector and Interested Party within 30 days.
  5. The Appellant was aggrieved by the  Judgment of the trial court and she lodged the Memorandum of Appeal dated 1.1.2022 premised on the following grounds: -
  6. That the learned Trial Magistrate erred in law and in fact in holding that the Respondent had proved ownership and was in fact a liability to the estate of the deceased despite overwhelming uncontradicted and material placed before the court.
  7. That the learned Trial magistrate erred in law and fact when he allow ed the Respondents prayer and dismissed the Appellants submissions which was to the effect that a claim for right to ownership of land can only be brought and /or enlisted in the ELC  and not in a succession cause as was done on the Respondent.
  8. That the learned trial Magistrate erred in law and in fact by failing to  put into consideration  the evidence adduced  before him and therefore  arriving at a wrong  conclusion that eth Respondent  is a liability to the estate and from the ordering that the  Appellant do prepare transfer documents for the suit property failure to which the court would take action.
  9. That the learned trial magistrate erred in law and fact by failing to consider  the magnitude of the issues involved and/or appreciating the evidence placed before the court thereby reaching a decision that is  unsustainable in law. The Appellant prayed that the appeal be allowed with costs and that  the judgment of the trial magistrate  be set aside.  
  10. On 23.7.2024 directions were taken that the appeal be heard by way of written submissions.
  11. The Appellant filed submissions dated 16.8.2924 whereas the Respondent filed submissions dated 5th November 2024.
  12. This court has considered the grounds of appeal, the evidence on record in the trial court the judgment of the trial Magistrate and the submissions by respective parties and find that there was credible evidence that the Objector and Interested Party were beneficiaries in the estate of the deceased as purchasers for value. They did not only purchase portion of the estate from the deceased during his life time but they also took possession and occupied the portions sold to them by the deceased. 
  13. The Petitioner / Appellant having confirmed that the Respondents were in occupation of the portions forming part of the estate of the deceased and having failed to controvert evidence that they purchased the same from the deceased this court finds no reason to unsettle the finding of the trial magistrate.   The Appeal lacks merit and is dismissed with costs to the Objector and Interested Party.

Delivered dated and signed at Migori this  14th day of November,   2024.