The Applicants vide application dated 2nd March 2023 sought that they be joined in the suit as interested parties and that the Land Registrar, Migori County Government be joined to the cause for purposes of this application and that the conservatory orders made on 17th June 2015 be reviewed appropriately.
The Applicants also prayed that in the alternative to the 2nd prayer, the court’s order made on 17th June 2015 be set aside.
They also sought that the 2nd Respondent de-registers or removes the restriction registered on the register of L.R No. South Sakwa/Kogelo/1528, as against the Applicants’ title to the land forthwith.
The Applicants also sought for costs of the suit.
The application was premised on the grounds on its face which are to the effect that orders made on 17th June 2015 were made without material facts and that by the time they were made they had been overtaken by events.
It was further argued that the 2nd Respondent was using orders made on 17th June 2015 against the Applicants in a manner that deliberately and flagrantly violates, denies, infringes upon and/ or threatens the Applicants’ constitutional rights and fundamental freedom, in the pretext of enforcing the orders of 17th June 2015, whereas such application is unjustifiable and indefensible in law.
It is also argued that the 2nd Respondent is thus denying, violating, threatening and infringing upon the Applicants’ rights to equality and protection under Article 27, right to access to information under Article 35; right to property under Article 40; Right to fair administrative action under Article 47; right to access to justice under Article 48 and right to fair hearing under Article 50 of the Constitution of Kenya 2010 in the pretext of abiding by the orders of 17th June 2015.
That the orders of 17th June 2015 are not serving any meaningful and/ or objective lawful purposes yet they are being applied against the Applicants, by the 2nd Respondent and rather illegally.
The Applicants argued they were not given a hearing in the Respondent’s application before the orders made on 17th June 2015 were issued.
The Applicants argued that there are sufficient reasons for reviewing/ setting aside the court’s orders of 17th June 2015 in the interest of justice.
Mr. Odero Advocate for the Applicants informed the court that the Petitioner was served twice but it is only her son who attended court on 5th December 2023 and she had been enjoying the orders granted on 17th June 2015 but had not obtained full grant.
The application was also supported by the joint affidavit of Jael Onyango Opiyo and Charles Opiyo Ochoo sworn on 2nd March 2023.
On 26th November 2024, Mr. Ogwe Advocate came on record for the Petitioner and sought for 7 days to file response. Directions were given allowing the Petitioner/ Respondent to file response and subsequently directions for filing submissions by the parties.
The application was canvassed by way of written submission which have been considered and it is not in dispute that the deceased herein died on 5th May 1992 while domiciled in East Sakwa Location and he was survived by two widows namely, Patricia Odongo the petitioner herein and Rose Achieng Juma who sold parcel of land No. South Sakwa/Kogelo/1528 to the Applicants herein on 18th August 2014 as per sale agreement annexed to the supporting affidavit marked COO3.
From the letter of the Chief East Sakwa Location dated 8th May 2015 the deceased was also survived by 3 daughters and 3 sons although Form 38 indicates 2 widows, 3 daughters and 4 sons.
It is also not in dispute that by the time the said Rose Achieng Juma sold the said parcel of land No. South Sakwa/Kogelo/1528 the same was duly registered in her name as shown in annexture COO4.
Grant of Letters of Administration were made to Patriciah Odongo Juma on 17th March 2015 and by chamber Summons application dated 13th May 2015 the Petitioner/ 1st Respondent sought that orders of prohibition be issued restricting title Nos. South Sakwa/Kogelo/1427 and 1428 registered in the name of the Respondent Rose Achieng Juma.
When the application came up for hearing under certificate of urgency on 14th May 2015, prayers 2 and 3 were granted pending hearing and determination of the application. On 17th June 2015 when the application came up for inter-partes hearing, the Respondent was absent and the interim orders were extended pending hearing of the petition.
It is noteworthy that the Petitioner did not take steps to have the Letters of Administration confirmed after the expiry of the statutory period of 6 months and the orders issued restricting dealings on the subject parcel of land remains in force.
Since the application dated 2nd March 2023 was filed the Administrator /1st Respondent had never filed a response and her Advocate applied to cease acting for lack of instructions. However, Mr. Ogwe Advocate came on record on 26th November 2024 and leave was granted to file response to the application and matter set down for ruling.
It is evident that the Applicants who are the registered owners of the subject parcel of land against which dealings have been restricted were not served or given audience before the orders therein were issued. In the circumstances this court finds that the orders were issued against the constitutional provisions for fair hearing and thus denying the Applicants the right to be heard. The orders made on 17th June 2015 restricting dealings on subject parcel of land is set aside; the Applicants are hereby joined as parties in the cause herein for purposes of confirmation and defending their rights in the said property.
Costs of the application to be in the cause.
Mention on 24th March 2026 for further directions.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 29TH DAY OF JANUARY, 2026.
The Applicants also prayed that in the alternative to the 2nd prayer, the court’s order made on 17th June 2015 be set aside.
They also sought that the 2nd Respondent de-registers or removes the restriction registered on the register of L.R No. South Sakwa/Kogelo/1528, as against the Applicants’ title to the land forthwith.
The Applicants also sought for costs of the suit.
The application was premised on the grounds on its face which are to the effect that orders made on 17th June 2015 were made without material facts and that by the time they were made they had been overtaken by events.
It was further argued that the 2nd Respondent was using orders made on 17th June 2015 against the Applicants in a manner that deliberately and flagrantly violates, denies, infringes upon and/ or threatens the Applicants’ constitutional rights and fundamental freedom, in the pretext of enforcing the orders of 17th June 2015, whereas such application is unjustifiable and indefensible in law.
It is also argued that the 2nd Respondent is thus denying, violating, threatening and infringing upon the Applicants’ rights to equality and protection under Article 27, right to access to information under Article 35; right to property under Article 40; Right to fair administrative action under Article 47; right to access to justice under Article 48 and right to fair hearing under Article 50 of the Constitution of Kenya 2010 in the pretext of abiding by the orders of 17th June 2015.
That the orders of 17th June 2015 are not serving any meaningful and/ or objective lawful purposes yet they are being applied against the Applicants, by the 2nd Respondent and rather illegally.
The Applicants argued they were not given a hearing in the Respondent’s application before the orders made on 17th June 2015 were issued.
The Applicants argued that there are sufficient reasons for reviewing/ setting aside the court’s orders of 17th June 2015 in the interest of justice.
Mr. Odero Advocate for the Applicants informed the court that the Petitioner was served twice but it is only her son who attended court on 5th December 2023 and she had been enjoying the orders granted on 17th June 2015 but had not obtained full grant.
The application was also supported by the joint affidavit of Jael Onyango Opiyo and Charles Opiyo Ochoo sworn on 2nd March 2023.
On 26th November 2024, Mr. Ogwe Advocate came on record for the Petitioner and sought for 7 days to file response. Directions were given allowing the Petitioner/ Respondent to file response and subsequently directions for filing submissions by the parties.
The application was canvassed by way of written submission which have been considered and it is not in dispute that the deceased herein died on 5th May 1992 while domiciled in East Sakwa Location and he was survived by two widows namely, Patricia Odongo the petitioner herein and Rose Achieng Juma who sold parcel of land No. South Sakwa/Kogelo/1528 to the Applicants herein on 18th August 2014 as per sale agreement annexed to the supporting affidavit marked COO3.
From the letter of the Chief East Sakwa Location dated 8th May 2015 the deceased was also survived by 3 daughters and 3 sons although Form 38 indicates 2 widows, 3 daughters and 4 sons.
It is also not in dispute that by the time the said Rose Achieng Juma sold the said parcel of land No. South Sakwa/Kogelo/1528 the same was duly registered in her name as shown in annexture COO4.
Grant of Letters of Administration were made to Patriciah Odongo Juma on 17th March 2015 and by chamber Summons application dated 13th May 2015 the Petitioner/ 1st Respondent sought that orders of prohibition be issued restricting title Nos. South Sakwa/Kogelo/1427 and 1428 registered in the name of the Respondent Rose Achieng Juma.
When the application came up for hearing under certificate of urgency on 14th May 2015, prayers 2 and 3 were granted pending hearing and determination of the application. On 17th June 2015 when the application came up for inter-partes hearing, the Respondent was absent and the interim orders were extended pending hearing of the petition.
It is noteworthy that the Petitioner did not take steps to have the Letters of Administration confirmed after the expiry of the statutory period of 6 months and the orders issued restricting dealings on the subject parcel of land remains in force.
Since the application dated 2nd March 2023 was filed the Administrator /1st Respondent had never filed a response and her Advocate applied to cease acting for lack of instructions. However, Mr. Ogwe Advocate came on record on 26th November 2024 and leave was granted to file response to the application and matter set down for ruling.
It is evident that the Applicants who are the registered owners of the subject parcel of land against which dealings have been restricted were not served or given audience before the orders therein were issued. In the circumstances this court finds that the orders were issued against the constitutional provisions for fair hearing and thus denying the Applicants the right to be heard. The orders made on 17th June 2015 restricting dealings on subject parcel of land is set aside; the Applicants are hereby joined as parties in the cause herein for purposes of confirmation and defending their rights in the said property.
Costs of the application to be in the cause.
Mention on 24th March 2026 for further directions.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 29TH DAY OF JANUARY, 2026.