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ELCAllowedCase No 5 of 2016· [2016] KEELC 238 (KLR)

Rosemary Moraa Obara v Jesse Ng’ang’a Mbochi [2016] KEELC 238 (KLR)

Environment and Land Court of Kenya
15 July 2016
1,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court froze all dealings on a disputed Kisii plot, confirming that estate administrators can sue to protect a deceased co-owner's land share.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kisii delivered by J. M. Mutungi, J, on 15th July 2016, on the plaintiff's notice of motion brought under Order 40 Rule 2 of the Civil Procedure Rules and section 63(c) of the Civil Procedure Act seeking a prohibitory order over land parcel Kisii Municipality/Block III/97 pending the hearing of her suit. The plaintiff avers that her late parents, William Obara and Tabitha Obara, together with two other proprietors, held the parcel as tenants in common in equal ¼ shares, and that the defendant, having purchased one co-owner's share, seeks to appropriate a ¾ share rather than ½. The defendant opposed, relying on an alleged consent order in Kisii HCCC No. 44 of 1982, and challenged the plaintiff's locus standi on the ground that the succession cause over Tabitha Bwari Obara's estate is unfinished. The court held that the plaintiff, as co-administrator of the estate, has locus to protect the deceased's interest, and that a deceased's interest can only be handled through a legal representative; the defendant equally cannot deal with property co-owned with a deceased person without the legal representatives' involvement. Noting the contested question of whether the defendant is entitled to ¾ or ½ share, the unexplained subdivision into parcels 613 and 614, and a search showing parcel 97 still in existence, the court directed the Land Registrar, Kisii County to place an inhibition on the register of the suit property and any sub-titles under section 68 of the Land Registration Act, 2012 until the suit is heard and determined. No costs orders were made; each party to bear their own costs of the application.

Key legal issues

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01

Locus standi of the plaintiff as co-administrator

Holding

The plaintiff has locus standi to sustain the suit to protect the deceased's estate interest pending determination of the suit.

Reasoning

The plaintiff disclosed in the plaint that she sues as one of the administrators of the estate of Tabitha Obara, a registered proprietor of the suit property. The court held that only a legal representative can take care of a deceased person's interest, and that the defendant likewise cannot deal with property co-owned with a deceased person without the deceased's legal representatives being involved. The unsettled succession cause does not defeat this standing.

p. 2
02

Preservation of the suit property pending trial

Holding

An inhibition under section 68 of the Land Registration Act was warranted to preserve the suit property until trial.

Reasoning

The parties' respective entitlements (¼ vs ½ or ¾ share) are highly contested and two deceased persons have an interest in the property. The defendant subdivided the parcel into Kisii Municipality/Block III/613 and 614 without explaining whether the deceased co-owners were involved, yet a search certificate showed parcel 97 still in existence. These triable issues justified preservation of the register.

p. 2
03

Whether the defendant is entitled to ¾ or ½ share of the plot

Holding

A triable issue reserved for the full trial; not determinable at the interlocutory stage.

Reasoning

The plaintiff maintains the four proprietors each held ¼ shares, while the defendant relies on an alleged consent order in Kisii HCCC No. 44 of 1982 awarding Laban Aungo ½ of the plot, whose share he bought. The plaintiff disputes that the consent was approved or adopted by the court. The court held this contested question can only be canvassed at trial.

p. 2

Legal principles established

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  • A legal representative of a deceased co-owner has locus standi to institute proceedings protecting the interest of the deceased's estate.
  • A person cannot deal with property held in common with a deceased person without involving the deceased's legal representatives.

Court orders

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  1. 1.Land Registrar, Kisii County directed to place an inhibition in the register of land parcel Kisii Municipality/Block III/97 and/or against any sub-titles resulting from any subdivisions of the same, in terms of section 68 of the Land Registration Act, 2012, inhibiting registration of any dealing with the land until the suit is heard and determined and/or until further orders of the court

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 2
  • Civil Procedure Actsection 63(c)
  • Land Registration Actsection 68

Cases cited (3)

  • Harrison Obonyo & 3 Others v William Obara & 4 others
    Kisii HCCC No. 31B of 2003
  • Kisii HCCC No. 44 of 1982 (consent order re Laban Aungo)
    Kisii HCCC No. 44 of 1982
  • Kisii HC Succession Cause No. 87 of 2011 (Estate of Tabitha Bwari Obara)
    HC Succession Cause No. 87 of 2011
Jurisdiction invoked
Order 40 Rule 2 of the Civil Procedure Rules and section 63(c) of the Civil Procedure Act; section 68 of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rosemary Moraa Obara v Jesse Ng’ang’a Mbochi [2016] KEELC 238 (KLR)", Case Analysis (2016). Case No 5 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/238/eng@2016-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.