1. By Chamber Summons dated 20th October, 2021, the respondent, Jeremiah Monyi seeks the following reliefs;
a. The grant of letters of administration intestate issued to Mary Akelo Omulo on the 11th Day of March, 2016 and confirmed on 6th March, 2017 be revoked and or annulled.
b. The subsequent entries in the register of lands, Kisumu by transmission pursuant to the grant of letters of administration intestate issued to Mark Akelo Omulo be cancelled and upon the said revocation, land parcel number Kisumu/Bar”B”/826 be registered in the name of the applicant Jeremiah Monyi.
c. Costs of this application be provided for.
2. In the annexed supporting affidavit sworn on even date, the respondent depones inter alia that; by a certificate of confirmation issued by this court on 15/3/2017, land parcel Kisumu/Bar”B”/826 (subject parcel) was wholly transferred to the petitioner. That the petitioner did not disclose to the court that the subject parcel does not form part of the deceased’s estate in that at the time of adjudication of the parcel in 1972, the parcel was commonly owned by himself and the deceased in the ratio of ¾ and ¼ respectively. That another adjudication was done in 1981 and the register was altered to indicate that the deceased and the applicant jointly owned the parcel. That efforts to get records from the lands registry have been futile.
3. That in the year 1960’s, the deceased ceded his remaining share to the applicant for a consideration and the latter has been in exclusive possession of the land since then which fact was within the petitioner’s knowledge.
4. The petitioner swore a replying affidavit sworn on 11th February, 2022 deponing that she only transferred half the share of the land and the other is still registered in the applicant’s name. She maintained that the deceased owned half the share of the land which she transferred to herself.
5. She depones that the court lacks jurisdiction to adjudicate on the matter as the certificate of official search showed ownership of the land. She denies the allegation that the deceased ceded his portion of the land. That the applicant is not related to the deceased and cannot therefore seek revocation of grant.
6. The application was disposed of by way of written submisions. The applicant’s submissions are dated 23rd August, 2023 and the petitioner’s are dated 6th November, 2023. The court has given due consideration to the same.
Analysis and determination.
7. Before delving into the merits of the application, I propose to deal with the issue of jurisdiction of the court to adjudicate over this application.
8. The petitioner’s contention in her submissions is that the court is not under any duty to interrogate the process of registration of the parcel. The decisions in re estate of Mbai Wainaina (deceased) (2015)eKLR, re estate of Richard Karanja Javan (deceased)( 2014) eKLR and Alexander Mbaka V Royford Muriuki Rauni & 7 others (2016) eKLR have been cited in that regard.
9. It is trite law that the jurisdiction of the court emanates from the constitution and statutes and cannot be conferred to it by consent of the parties. Once the court establishes that it lacks jurisdiction, it downs its tools. See the decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] eKLR.
10. In the matter herein, the applicant’s contention is that the land in question was jointly owned by himself and the deceased; which fact he alleges was not disclosed to the court by the petitioner.
11. The duty of a probate court in distribution of the deceased’s estate were stated by Musyoka J in In Re Estate of Atibu Oronje Asioma (Deceased) (Succession Cause 312 of 2008) [2022] KEHC 11046 (KLR) (22 July 2022) (Ruling) thus;
The design of the Law of Succession Act was that the mandate of the probate court was limited to distribution of the assets, and where a dispute arose on ownership of any asset, then the same should be placed in another forum, and not the succession cause, for litigation and determination. That was the spirit of rule 41(3) of the Probate and Administration Rules.
Succession proceedings were not appropriate for determining disputes between the estate and third parties over title to or ownership of assets placed before the court for distribution.
12. In the instant application, the application dwells on issues of land ownership between the deceased and the applicant, the fact of purchase of the land as well as the issue of occupation of the parcel.
13. It is my view and finding that once the succession court has confirmed a grant, the next frontier in case of dispute is the environment and land court to determined ownership. The succession court only deals with distribution of the deceased’s unencumbered assets, which is not the case in the instant proceedings.
14. Having said as such, it is my holding that this application is not one for the probate court to determine as the same falls within the ambit of article 162 (2) (b) of the Constitution of Kenya 2010 and section 13 (2) of the Environment and Land Court Act which provides as follows:
(2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes―
(a) relating to environmental planning and protection, climate issues,
land use planning, title, tenure, boundaries, rates, rents, valuations,
mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d) relating to public, private and community land and contracts, choses
in action or other instruments granting any enforceable interests in
land; and
(e) any other dispute relating to environment and land.
15. The application dated 20th October, 2021 is hereby struck out for want of jurisdiction with no orders as to costs.
This file is marked as closed.
Delivered, Dated, and Signed at Kisumu this 25th day of October 2024