[2013] KEHC 1438 (KLR)
The court found that the issues surrounding the ownership and status of the properties in question are complex and cannot be resolved through the present application. The court emphasized that the proper procedure, as previously directed, is to determine the claims of the interested party and the objectors by way of...
Source-derived case information.
- Citation
- [2013] KEHC 1438 (KLR)
- Parties
- Applicant: Beatrice Kathini Kiilu; Respondent: Beatrice Nzeve Musomba; Respondent: Jonathan Kieti Musomba; Respondent: Kilonzo Musomba; Respondent: Samuel Mutinda Musomba; Respondent: Ruth Musomba; Respondent: Kioko Musomba; Interested Party: Francis Mutula Mutiso; Respondent: Dominic Mutinda Kalunga
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 300 of 2002
- Procedural Posture
- Succession Cause / Ruling on Chamber Summons to Lift Prohibitory Orders
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Confirmation of Grant, Prohibitory Orders, Beneficiary Rights, Transfer of Land Titles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Kathini Kiilu
Applicant
Beatrice Nzeve Musomba
Respondent
Jonathan Kieti Musomba
Respondent
Kilonzo Musomba
Respondent
Samuel Mutinda Musomba
Respondent
Ruth Musomba
Respondent
Kioko Musomba
Respondent
Francis Mutula Mutiso
Interested Party
Dominic Mutinda Kalunga
Respondent
Procedural Posture
Succession Cause / Ruling on Chamber Summons to Lift Prohibitory Orders
Legal Issues
- 1 Whether the prohibitory orders restraining the interested party from dealing with the listed plots should be set aside or lifted.
- 2 Whether the properties in question form part of the estate of the deceased under the Law of Succession Act.
- 3 Whether the applicant's acquisition of the plots was valid and outside the scope of the succession proceedings.
Ratio Decidendi
The court found that the issues surrounding the ownership and status of the properties in question are complex and cannot be resolved through the present application. The court emphasized that the proper procedure, as previously directed, is to determine the claims of the interested party and the objectors by way of viva voce evidence. Since this process has not been undertaken, the application to lift the prohibitory orders is premature. The court therefore dismissed the application, holding that the orders for viva voce evidence must be complied with to conclusively resolve the dispute over the properties.
Court Disposition
application dismissed with costs
Orders
- The Chamber Summons application dated 7/12/2010 is dismissed with costs.
- The orders dated 16/11/09 directing determination by viva voce evidence are to be complied with.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 300 OF 2002
IN THE MATTER OF THE ESTATE OF MUSOMBA KIOKO (DECEASED)
BEATRICE KATHINI KIILU............................................. PETITIONER
VERSUS
BEATRICE NZEVE MUSOMBA
JONATHAN KIETI MUSOMBA
KILONZO MUSOMBA
SAMUEL MUTINDA MUSOMBA
RUTH MUSOMBA
KIOKO MUSOMBA ………………………………………….. RESPONDENTS
AND
FRANCIS MUTULA MUTISO …………………….……….. INTERESTED PARTY
R U L I N G
The Chamber Summons application dated 7/12/2010 is brought under section 47 and section 93 (1) of the Law of Succession Act. The application seeks the following orders:-
(Spent)
That this Honourable court’s ex-parte orders dated 1/3/2006 restraining the interested party/applicant from disposing, transferring or alienating Plot Numbers:-
Machakos/Matuu/4111
Machakos/Matuu/4110
Machakos/Matuu/4112
Machakos/Matuu/4116
Machakos/Matuu/4134
Machakos/Matuu/4109
Machakos/Matuu/4108
Machakos/Matuu/4105
Machakos/Matuu/4091
Machakos/Matuu/4092
Machakos/Matuu/4090
Machakos/Matuu/4080
Machakos/Matuu/4081
Machakos/Matuu/4088
Machakos/Matuu/4089
Machakos/Matuu/4050
Machakos/Matuu/4061
Machakos/Matuu/4079
Machakos/Matuu/4106
That prohibitory orders issued by this Honourable Court against the above listed nineteen (19) titles (plots) on 1/3/2006 be set aside and/or lifted.
That costs of this application be paid by the Objector/Respondent.
According to the affidavit in support sworn by the Interested Party/Applicant, Francis Mutula Mutiso, he is the registered owner of the nineteen (19) plots which are the subject matter of this application. That he purchased the plots from the Petitioner herein following the confirmation of the grant herein and the same were validly transferred to him.
The Applicant’s complaint is that the exparte orders made on 1/3/2006 restraining him from transferring or in any way alienating the aforestated properties until further orders of this court are unfair and/or unjust as the said properties do not form part of the estate of the deceased and the Applicant has invested substantial capital in the said property.
In opposition to the application, the 1st Respondent, Dominic Mutinda Kalunga swore a replying affidavit on 16/6/12. The 2nd Respondent has described himself as the beneficiary of Plot No. Machakos/Matuu/4079, one of the plots claimed by the Applicant. According to the 1st Respondent, the orders granted by the court on 1/3/2006 are fair. That the said orders have been in force for more than six years and the court ought to hear the application for revocation to reverse the illegal transfer of Plot No. Machakos/Matuu/4079.
The firm of Nzei & Company Advocates appeared for the Applicant whileJ.A. Makau & Company Advocatesappeared for the 1st Respondent. The application was canvassed by way of written submissions which I have duly considered.
On 1/3/06 Onyancha J, made the following orders:-
The Interested Party,Francis Mutula Mutiso, is hereby restrained from disposing of, transferring or in any other way alienating the properties listed in the Grant of Letters of Administration confirmed on 30/1/2004 until further orders of this court.
The Machakos District Land Registrar is hereby prohibited from registering any dealing in respect of the properties in the Grant of Letters aforementioned until further orders of this court.
I am in agreement with Onyancha J, that the issues raised in respect of the aforestated properties are quite serious and intricate. On 16/11/2009 it was directed by the court that the claims by the Interested Party and by the Objectors be determined by way of viva voce evidence. This has never come to be. Instead the Interested Party has come up with the application at hand. My view is that the instant application cannot settle the issues on whether the properties in question are covered by section 93 of the Law of Succession Act.
Consequently, the orders dated 16/11/09 ought to be complied with so that this matter is settled once and for all. The application is therefore dismissed with costs.
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 4thday of September 2013.
B. THURANIRA JADEN
JUDGE