[2013] KEHC 4439 (KLR)
The court found that the respondent failed to involve his sisters, including the applicant, in the succession proceedings and did not obtain their consent as required by law. Additionally, the estate's value exceeded the jurisdictional limit of the magistrate's court, rendering the proceedings and the grant issued...
Source-derived case information.
- Citation
- [2013] KEHC 4439 (KLR)
- Parties
- Applicant: Esthah Mwangangi; Respondent: Peter Ngoroi Mwangangi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 147 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revocation/annulment of Grant
- Outcome
- application allowed; grant revoked; fresh grant to be issued jointly to both parties
- Legal Topics
- Succession Proceedings, Revocation of Grant, Jurisdiction of Magistrate, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esthah Mwangangi
Applicant
Peter Ngoroi Mwangangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revocation/annulment of Grant
Legal Issues
- 1 Whether the grant issued and confirmed to the respondent was obtained by concealment of material facts or defective proceedings.
- 2 Whether the trial magistrate had jurisdiction to hear and determine the succession cause given the value of the estate exceeded the statutory limit.
- 3 Whether all beneficiaries were properly involved and notified in the succession proceedings.
Ratio Decidendi
The court found that the respondent failed to involve his sisters, including the applicant, in the succession proceedings and did not obtain their consent as required by law. Additionally, the estate's value exceeded the jurisdictional limit of the magistrate's court, rendering the proceedings and the grant issued therein fundamentally defective. The absence of proof of service or attendance of all beneficiaries at the confirmation hearing further supported the applicant's claim of exclusion. Consequently, the grant issued and confirmed to the respondent was revoked due to both lack of jurisdiction and failure to involve all beneficiaries, and a fresh grant was ordered to be issued...
Court Disposition
application allowed; grant revoked; fresh grant to be issued jointly to both parties
Orders
- The orders issuing and confirming the grant to the respondent are set aside.
- The grant issued and confirmed to the respondent is revoked.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Embu
Miscellaneous Application 147 of 2009 [if gte mso 9]><xml>
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ESTHAH MWANGANGI..............…..............…..........…..APPLICANT
VERSUS
PETER NGOROI MWANGANGI..............….............RESPONDENT
R U L I N G
This is the application dated 17/12/2009 for revocation/annulment of grant under Rule 44 of the Probate and Administration Rules and Section 76 of the Law of Succession Act. The grounds as stated in the body of the application are:-
The grant to the Respondent made on 9/1/2009 and confirmed on 19/11/2009 be annulled or revoked on grounds that the same was obtained by concealment from the Court of something material to the case and further that the proceedings to obtain the grant and have it confirmed were defective in substance.
In her affidavit in support the applicant stated that as a beneficiary to the estate of the deceased she was not aware of the succession cause giving rise to the grant. And that the Respondent had presented himself to the Court as the only beneficiary. The Respondent in his Replying Affidavit disputed the Applicant's averments. He indicated that the latter participated in the succession proceedings and had no objection to the confirmation of grant.
When the matter came for hearing on 18/3/2013 the applicant testified and called one of her sisters as a witness. Both of them testified that they had not gotten any share out of their mother's estate of 5 acres. They said their elder brother had been given 4 acres of land long before their parents died. And that both the applicant and her sister are unmarried. Her other witness was a clan member. He echoed the same sentiments. They are claiming 2 acres out of this land.
The Respondent on the other hand testified saying he relied on the replying affidavit he filed. He still insists that the land is his. I have had an opportunity of perusing the record of Runyenjes Court vide Succession Cause No. 98/2008. Its indicated that the estate of the late BERAS CIOMWARI MWANGANGI comprises of Land LR. KYENI/KIGUMO/2252 measuring 1. 96 hectares the equivalent of 4. 9 acres.
It goes without saying that this land could not be valued at Shs.100,000/= in November 2008. The learned trial Magistrate ought to have noted that and declined to hear the Succession Cause. Section 48(1) of the Law of Succession Act (cap 160 Laws of Kenya) puts a limit of Shs.100,000/= as the gross value of an estate a Magistrate would deal with under the said Act. It shows clearly that the value of the estate was beyond the learned trial Magistrate's jurisdiction.
Besides this issue of jurisdiction, I also find that the deceased was survived by 4 children. When the succession cause was filed in Runyenjes, the Respondent never sought the consent of the other children. Hence the non filing of Form 38 by the other children. And on 19/11/2009 its indicated that ALL interested parties were present in Court and they raised no objection.
The record does not indicate who in particular was present. This is a critical point because the other beneficiaries have denied having been present in Court. There is nothing produced herein to prove that the beneficiaries were present in court on 19/11/2009. The record does not even have any proof of service for this hearing date because on 15/10/2009 the matter was adjourned as some of the interested parties were absent. It was important for the Court to be sure of service on thise parties and their actual attendance.
And for the 2 reasons explained above, I do find that the Respondent did not involve his sisters in the process of the filing and determination of the succession cause at Runyenjes Court. Secondly but most important is that the learned trial Magistrate lacked the requisite jurisdiction to deal with the said matter.
I therefore set aside the orders issuing and confirming the grant to the Respondent. The Grant issued and confirmed is therefore revoked. The title to the said land KYENI/KIGUMO/2252 to revert to the original owner forthwith.
A fresh grant to be issued to Esthah MwangangiandPeter Ngoroi Mwangangi jointly. The same to be confirmed as is required by law. The Land Registrar Embu to be served with this order for compliance.
Costs in cause.
DELIVERED, DATED AND SIGNED AT EMBU THIS 28TH DAY OF MARCH 2013.
H.I. ONG’UDI
J U D G E
In the presence of:-
Both parties
Njue CC
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