[2015] KEHC 5980 (KLR)
The court found that the main issue for determination is the entitlement to the deceased's estate, specifically the parcel of land KAKAMEGA/LUSIOLA/1096, between the Petitioner and the Applicant. However, this issue requires evidence and cannot be resolved at the stage of the summons for revocation. The Applicant's...
Source-derived case information.
- Citation
- [2015] KEHC 5980 (KLR)
- Parties
- Respondent: Abisalom Kayere Misigo; Applicant: Tom William Onguka
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 851 of 2012
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- summons for revocation or annulment of grant dismissed
- Judges
- AC Mrima
- Legal Topics
- Succession, Revocation of Grant, Inheritance Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abisalom Kayere Misigo
Respondent
Tom William Onguka
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of representation issued to the Petitioner should be revoked or annulled due to alleged fraud and misrepresentation of relationship to the deceased.
- 2 Who among the Petitioner and the Applicant is entitled to inherit the deceased's land.
Ratio Decidendi
The court found that the main issue for determination is the entitlement to the deceased's estate, specifically the parcel of land KAKAMEGA/LUSIOLA/1096, between the Petitioner and the Applicant. However, this issue requires evidence and cannot be resolved at the stage of the summons for revocation. The Applicant's claim of fraud was not sufficiently substantiated to warrant revocation or annulment of the grant at this stage. Therefore, the summons for revocation or annulment of the grant was dismissed, and directions were given for the Petitioner to proceed with confirmation of the grant, allowing the Applicant an opportunity to respond.
Court Disposition
summons for revocation or annulment of grant dismissed
Orders
- The Summons for Revocation or Annulment of the Grant dated 03/01/2013 is dismissed.
- The Petitioner/Administrator shall file and serve a Summons for Confirmation of the Grant within 14 days.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 851 OF 2012
IN THE MATTER OF THE ESTATE OF ALWOCH OBARA ALIAS
ALWOCHI UBALA........................................DECEASED
AND
ABISALOM KAYERE MSIGO....................PETITIONER
VERSUS
TOM WILLIAM ONGUKA...........................APPLICANT
RULING
The deceased herein ALWOCH OBARA alias OLWOCH UBALA died on 12/05/1975 while registered as the proprietor of the parcel of land known as KAKAMEGA/LUSIOLA/1096 as the only known asset.
Grant of his representation was issued on 02/11/2012 to the Petitioner herein ABISALOM KAYERE MISIGO in his capacity as the deceased’s son.
On 09/01/2013, the Applicant herein TOM WILLIAM ONGUKA filed the Summons for Revocation of the Grant dated 03/01/2013. In support thereto was the affidavit evenly sworn by the Applicant. The Applicant decries fraud on the part of the Petitioner alleging that the Petitioner is not in anyway related to the deceased and that the allegation that the Petitioner was the deceased’s son remained untrue. He called for the revocation and/or annulment of the Grant in issue.
I have carefully perused the entire record and it appears that the Applicant claims to be the deceased’s grandson whereas the Petitioner claims to be the deceased’s son. However, the main issue for determination in this cause as a whole would be who among the Petitioner and the Applicant will be entitled to inherit the deceased’s land aforesaid. That issue therefore calls for evidence and with a view to finally determine the dispute herein the Summons for revocation dated 03/01/2013 shall stand determined in the following manner and the Court makes the following orders: -
The Summons for Revocation or Annulment of the Grant dated 03/01/2013 be and is hereby dismissed;
The Petitioner/Administrator shall file and serve a Summons for Confirmation of the Grant within the next 14 days and the Applicant will be at liberty to respond thereto within 14 days of such service.
There shall be a restriction on the parcel of land known as KAKAMEGA/LUSIOLA/1096 against any and all transactions thereto pending further orders of this Court.
The prevailing status quo on the land known as KAKAMEGA/LUSIOLA/1096 shall be maintained pending further orders of the Court.
The matter shall be listed for directions within 60 days of the date herein.
Each party to bear its costs of the application.
DATED, DELIVERED AND SIGNED AT KAKAMEGA THIS 12TH DAY OF FEBRUARY 2015.
C. MRIMA
JUDGE