In the Matter of the Estate of Aaron Kimosop Kandie (Deceased) [2014] KEHC 8394 (KLR)
- Citation
- [2014] KEHC 8394 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- AO Muchelule
- Case number
- Succession Cause 991 of 2003
- Language
- English
More details
- Court
- High Court
- Panel
- AO Muchelule
- Case number
- Succession Cause 991 of 2003
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court determined that since the application dated 19th October 2009 directly affects Land Reference Number 1055/19, which has been transferred to MOTONI WEST VILLAS LIMITED, and since this entity was not previously served with the application, it is necessary to serve them to ensure that their rights are not prejudiced. The court emphasized that substantial justice requires all parties who may be affected by the outcome to be given an opportunity to be heard. Accordingly, the court directed that MOTONI WEST VILLAS LIMITED be served with the application and allowed to respond, after which the matter would proceed by way of oral evidence. The court also directed the parties to agree on the issues for determination to facilitate a fair and efficient hearing.
Court disposition
directions issued for service and oral hearing
Orders
- MOTONI WEST VILLAS LIMITED to be served with the application dated 19th October 2009 within 14 days.
- MOTONI WEST VILLAS LIMITED to file and serve its response within 14 days of service.
- Parties to file any affidavits in response within 14 days thereafter.
- Application dated 19th October 2009 to be heard by oral evidence on a date to be fixed.
- Parties to agree on issues for determination.
02
Material facts
Parties
__MISSING__
Applicant__MISSING__
Respondent03
Procedural history
Posture
Succession Cause / Directions on Service and Hearing of Application
04
Questions and positions
Legal issues
- 01
Whether third party MOTONI WEST VILLAS LIMITED should be served with the application dated 19th October 2009 before further proceedings.
- 02
Whether the application affecting Land Reference Number 1055/19 can proceed without service to the current registered owner.
- 03
How to ensure substantial justice to all parties in the succession cause.
Party arguments
- Applicant
- The applicant seeks to challenge or affect the transfer of Land Reference Number 1055/19, which was previously part of the deceased's estate and is now registered to MOTONI WEST VILLAS LIMITED. The application was filed without serving the current registered owner, potentially affecting their rights.
- Respondent
- The respondent or other parties argue that MOTONI WEST VILLAS LIMITED, as the current registered owner of the property in question, must be served with the application to ensure their right to be heard and to avoid prejudicing their interests.
05
Court’s reasoning
Legal principles
- 01
Principle of natural justice; see also HCCC No. 344 of 2009 ruling by Judge R.N. Nambuye
A party whose interests may be affected by court orders must be served and given an opportunity to be heard.
- 02
General principles of fair hearing under Article 50 of the Constitution of Kenya
Substantial justice requires that all affected parties participate in proceedings that may impact their rights.
06
Ratio, limits and disposition
Ratio decidendi
The court determined that since the application dated 19th October 2009 directly affects Land Reference Number 1055/19, which has been transferred to MOTONI WEST VILLAS LIMITED, and since this entity was not previously served with the application, it is necessary to serve them to ensure that their rights are not prejudiced. The court emphasized that substantial justice requires all parties who may be affected by the outcome to be given an opportunity to be heard. Accordingly, the court directed that MOTONI WEST VILLAS LIMITED be served with the application and allowed to respond, after which the matter would proceed by way of oral evidence. The court also directed the parties to agree on the issues for determination to facilitate a fair and efficient hearing.
Obiter and limits
- The court noted that aspersions had been cast on the confirmation of grant in a previous ruling (HCCC No. 344 of 2009), highlighting the need for careful consideration of all parties' interests.
- The court stressed the importance of service and participation of all affected parties in succession proceedings.
Court disposition
directions issued for service and oral hearing
- MOTONI WEST VILLAS LIMITED to be served with the application dated 19th October 2009 within 14 days.
- MOTONI WEST VILLAS LIMITED to file and serve its response within 14 days of service.
- Parties to file any affidavits in response within 14 days thereafter.
- Application dated 19th October 2009 to be heard by oral evidence on a date to be fixed.
- Parties to agree on issues for determination.
Source and reliance status
High Court
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Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 991 OF 2003
IN THE MATTER OF THE ESTATE OF AARON KIMOSOP KANDIE (DECEASED)
DIRECTIONS
Directions were taken on 9th July 2014 that the application dated 19th October 2009 be disposed of by written submissions.
However, the application touches on Land Reference Number 1055/19 situate at Karen which belonged to the deceased AARON KIMOSOP KANDIE and which has since, following the confirmation of the grant, been transferred to MOTONI WEST VILLAS LIMITED.
MOTONI WEST VILLAS LIMITED are third parties who were not served with the present application, and yet if the application is allowed they will be affected.
I further note THAT in a ruling delivered on 14th October 2011 in HCCC No. 344 of 2009at Nairobi by Judge R.N. Nambuye aspersions were cast on the confirmation now subject of this application.
In view of the foregoing and in order that substantial justice be done to the Cause and to the parties, I ask that MOTONI WEST VILLA LIMITED be served with the application dated 19th October 2009 and to file and serve its response within 14 days of service. Thereafter, the parties shall have 14 days to file any affidavits in response. Subsequently, the application dated 19th October 2009 shall be heard by oral evidence on a date to be given on 24th November 2014.
In the meantime, parties should agree on the issues for determination.
DATED at NAIROBI this 30th day of October, 2014.
A.O. MUCHELULE
JUDGE
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