[2009] KEHC 973 (KLR)
The court held that the applicant's claim to a portion of the deceased's land was invalid because the transaction lacked the mandatory Land Control Board consent, rendering it null and void under the Land Control Act. Consequently, the applicant was not entitled to benefit from the deceased's estate or to be cited...
Source-derived case information.
- Citation
- [2009] KEHC 973 (KLR)
- Parties
- Applicant: Colleter Adhiambo Ochieng; Respondent: Alice Akoth Ochuoga; Respondent: Patrick C. Ahenda
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 123 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Revoke Grant
- Outcome
- application dismissed with costs
- Legal Topics
- Revocation of Grant, Land Control Board Consent, Intestate Succession, Sale of Land Without Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Colleter Adhiambo Ochieng
Applicant
Alice Akoth Ochuoga
Respondent
Patrick C. Ahenda
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Revoke Grant
Legal Issues
- 1 Whether the applicant is entitled to benefit from the deceased's estate based on an alleged sale of land by the deceased.
- 2 Whether the lack of Land Control Board consent renders the transaction null and void.
- 3 Whether the applicant was entitled to be cited in the succession proceedings.
Ratio Decidendi
The court held that the applicant's claim to a portion of the deceased's land was invalid because the transaction lacked the mandatory Land Control Board consent, rendering it null and void under the Land Control Act. Consequently, the applicant was not entitled to benefit from the deceased's estate or to be cited in the succession proceedings. The court also found that the objection regarding the court's jurisdiction, based on the alleged value of the land, was unsubstantiated due to the absence of a valuation report. The grounds of opposition raised by the respondents were upheld, and the application to revoke the grant was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application to revoke the grant is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Miscellaneous Civil Application 123 of 2009
COLLETER ADHIAMBO OCHIENG ………………………APPLICANT
AND
ALICE AKOTH OCHUOGA…………………………1ST RESPONDENT
PATRICK C. AHENDA……………………………2ND RESPONDENT
R U L I N G
The deceased Rusina Owuor Owidi died intestate on 11. 10. 2994 leaving a parcel of land registration number Kabondo/Kasewe/1580 measuring 47 hectares. There is confirmed grant issued to 1 st respondent who was the daughter-in-law to the deceased. The respondent has since sold 0. 95 hectares of the land to the 2 nd respondent. This application was brought to revoke the grant to the 1 st respondent. The applicant claims that on 15. 12. 2000 the deceased sold to her (25x100) feet of the land following which she put up permanent residence thereon. She depones this fact was known to the 1st respondent and yet she did not invite her to the succession proceedings. The applicant deponed that the deceased died before transferring the portion to her.
The applicant does not indicate that application was made by the deceased to the Land Control Board or that sanction of the Board to the transaction was obtained. The position in law would be that, without such consent, the transaction became null and void and cannot be basis for the present application. The applicant was not entitled to benefit from the deceased’s estate, and neither was she supposed to be cited. The complaint that the court that confirmed the grant lacked jurisdiction because the value of the land was in excess of Kshs. 100,000/= is not legally tenable there being no valuation report. These matters were raised in the Grounds of Opposition and are with merit.
The application is consequently dismissed with costs.
Dated, signed and delivered at Kisii this 10th day of November, 2009
A.O.MUCHELULE
JUDGE
10/11/2009
10/11/2009
Before A.O.Muchelule-J
Court clerk-Mongare
Mr. Masese for Mr. Minda for applicant
Court: Ruling in open court.
A.O.MUCHELULE
JUDGE
10/11/2009