[2012] KEHC 3878 (KLR)
The court found that the issue of whether the petitioners had already received their inheritance was previously addressed in a related succession cause, where it was established that each son had been allocated a plot, and the objector had sold his share. The current distribution of the disputed plot among all three...
Source-derived case information.
- Citation
- [2012] KEHC 3878 (KLR)
- Parties
- Applicant: Brown Otengo Asava; Applicant: Arthur Mwanzi Asava; Respondent: Jemeny Mudaki Asava
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 278 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application for revocation of grant dismissed
- Legal Topics
- Revocation of Grant, Distribution of Estate, Inheritance Rights, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brown Otengo Asava
Applicant
Arthur Mwanzi Asava
Applicant
Jemeny Mudaki Asava
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant issued to the petitioners should be revoked due to alleged non-service and double inheritance.
- 2 Whether the objector, as the last born, is solely entitled to the suit property to the exclusion of his brothers.
- 3 Whether the distribution of the estate among the three sons was fair and in accordance with the law.
Ratio Decidendi
The court found that the issue of whether the petitioners had already received their inheritance was previously addressed in a related succession cause, where it was established that each son had been allocated a plot, and the objector had sold his share. The current distribution of the disputed plot among all three sons was deemed fair and equitable. The objector’s claim for exclusive entitlement was unsupported by law or fact. The application for revocation of the grant lacked merit as there was no evidence of fraud, concealment, or procedural defect. The court dismissed the application and ordered each party to bear their own costs, emphasizing the equitable treatment of all...
Court Disposition
application for revocation of grant dismissed
Orders
- The application dated 3rd November 2008 for revocation of grant is dismissed.
- Each party shall meet his own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
Succession Cause 278 of 2007
IN THE MATTER OF THE ESTATE OF KENZIA DALITSU alias KETSIA DALIDZU – DECEASED
A N D
BROWN OTENGO ASAVA
ARTHUR MWANZI ASAVA ...................................................................... PETITIONERS
V E R S U S
JEMENY MUDAKI ASAVA .............................................................................. OBJECTOR
R U L I N G
The objector filed his application dated 3rd November 2008 seeking revocation of the grant issued to the petitioner herein. The applicant contends that the application for the grant by the petitioners was not served upon the objector personally and that the petitioners had already obtained their respective shares of inheritance from their father. The plot in dispute, plot number KAKAMEGA/MABLE/532 was registered in the name of the parties’ mother and the objector, being the last born was entitled to that plot. The objector contends that if the petitioners are to be given a share of the suit property, this would amount to double sharing.
Parties herein took directions and agreed to file written submissions. Only the petitioners managed to do so. I do note that the objector’s counsel, Mr. Khakula was in court on 19th May 2011 when parties agreed to file written submissions. The matter was fixed for mention on 23rd November 2011 but no submissions had been filed by the objector. Mr. Elung’ata held Mr. Khakula’s brief who was said to be out the country. This court granted the objector another thirty (30) days to file his submissions but no such submissions were filed.
The essence of the objection is that the petitioners are the elder brothers of the objector. The objector contends that the petitioners were given their inheritance by their late father and the suit property was registered in the name of the parties’ mother, Ketsia Dalinzu Asava. Being the last born, the objector maintains that he is entitled to the deceased’s estate to the exclusion of his two brothers.
The proceedings herein show that the issue as to whether the petitioner had already received their respective inheritance was dealt with in Succession Cause number KAKAMEGA 45 ‘B’ of 1990 Jemeny Mudaki Asava –vs- Brown Otengo Asava and Another. The court in that matter revoked a grant that had been issued to the objector in relation to the deceased’s estate. From the pleadings in that matter which was consolidated with this cause by consent on 11th November 2010, it is indicated that each of the three sons were given their respective plots namely KAKAMEGA/LYADUYWA/1268, 1265and1269 with the objector selling his plot number 1269.
The petitioners herein distributed plot number KAKAMEGA/MBALE/532 equally amongst the three sons of the deceased. I do find that the distribution is fair as the objector is getting a share equal to the other beneficiaries. There is no merit in the application for revocation of the grant and the said application dated 3rd November, 2008 is hereby dismissed. Since the parties are brothers, I do not wish to burden anyone of them with costs. Each party shall meet his own costs. It is so ordered.
Delivered, dated and signed at Kakamega this 10th day of May 2012
SAID J. CHITEMBWE
J U D G E