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ELCStruck OutSuccession Cause (Notice of Motion dated 24/09/2024)

Ogembo v District Land Adjucation & Settlement Suba/Mbita Districts & 4 others (Environment & Land Petition 4 of 2022) [2025] KEELC 5060 (KLR)

High Court of Kenya
18 June 2025
FNFred Nyagaka
876 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's High Court struck out a duplicate succession application, ruling a part-heard earlier application must be resolved first.

What this practically means

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Executive summary

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By Notice of Motion dated 24/09/2024, the Petitioner/Applicant, representing the family of Norbert Ogembo Ongus (deceased), sought orders directing the Land Registrar, Homa-Bay County to dispense with surrender of the original title deed over LR No. Lambwe Est/Lambwe West 'B'/217, register the mutation and register transfer instruments to give effect to the court's judgment and the Amended Decree of 26/07/2022, under which 12 acres went to the family of John Juma Osore (represented by the 5th and 6th Respondents) and the remainder to the Ongus family. The Applicant contended registration was frustrated by the Respondents' failure to surrender the original title deed. The court observed that an earlier, similar Application dated 05/02/2024, seeking Deputy Registrar's execution of the mutation, consent application and transfer instruments, was already part-heard; summons had been issued to the Respondents but the 5th Respondent died before determination. The court held that the earlier application should have been heard fully, determined, or withdrawn, and that the later application ought to have been stayed pending the earlier one. In the interest of justice, the later application was struck out for similarity with the one dated 05/02/2024, with each party bearing its own costs. The substantive relief for registration of the decreed portions was therefore not determined and remains open on the part-heard application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Application dated 24/09/2024 should proceed when a similar, part-heard Application dated 05/02/2024 is on record in the same file

Key legal issues

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01

Whether a fresh application seeking substantially the same orders as a part-heard earlier application in the same file could be entertained

Holding

The later application dated 24/09/2024 was struck out; the proper course was to have the earlier application dated 05/02/2024 heard fully, determined, or withdrawn, and the later application ought to have been stayed

Reasoning

The court noted the two applications sought similar orders, differing only in that the later one sought dispensation with surrender of the original title. The earlier application had been partly heard, with summons issued to the respondents; the 5th Respondent died before its determination. In the interest of justice, duplicate applications in the same file could not proceed simultaneously, so the later one had to give way to the part-heard one.

p. 3

Legal principles established

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  • Where two similar applications by the same party are pending in the same file, the later application must give way to the part-heard earlier one

Court orders

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  1. 1.The Application dated 24/09/2024 is struck out for similarity with the Application dated 05/02/2024
  2. 2.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FN
majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction of the court over its own process in the succession cause in which an Amended Decree was issued on 26/07/2022

Relief refused

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Orders directing the Land Registrar, Homa-Bay County to dispense with surrender of the original title deed over LR No. Lambwe Est/Lambwe West 'B'/217, register the mutation and issue transfer instruments/title deeds in terms of the Amended Decree of 26/07/2022

The application duplicated a part-heard application dated 05/02/2024 in the same file; the later application ought to give way to the part-heard one

p. 3

Costs

Each party shall bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the Application dated 24/09/2024 is hereby struck out for similarity with the one dated 05/02/2024.
p. 3Striking out of duplicative application
Each party shall bear its own costs.
p. 3Costs order

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, "Ogembo v District Land Adjucation & Settlement Suba/Mbita Districts & 4 others (Environment & Land Petition 4 of 2022) [2025] KEELC 5060 (KLR)", Case Analysis (2025). Succession Cause (Notice of Motion dated 24/09/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5060/eng@2025-06-18

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