[2017] KEHC 6308 (KLR)
The court found no sufficient grounds to revoke the grant issued and confirmed over twenty years ago, as the applicant had participated in the original proceedings and subdivision process. However, the court recognized that the applicant's portion of land appeared smaller than what was ordered in the certificate of...
Source-derived case information.
- Citation
- [2017] KEHC 6308 (KLR)
- Parties
- Applicant: Eunice Wanjiku P. Muturi; Respondent: Gitau Gichaga; Respondent: Munyutu Gichaga
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 429 of 2015
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application for revocation of grant dismissed; re-survey of subdivided parcels ordered
- Judges
- DW Mbuteti
- Legal Topics
- Revocation of Grant, Distribution of Estate, Fraud in Succession, Land Subdivision Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Wanjiku P. Muturi
Applicant
Gitau Gichaga
Respondent
Munyutu Gichaga
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration should be revoked on grounds of fraud or concealment of material facts.
- 2 Whether the applicant was shortchanged during the subdivision of the estate land contrary to the confirmed grant.
- 3 Whether the subdivision of LR LOC 20/GIKINDU/GITHURI/195 was in accordance with the certificate of confirmation.
Ratio Decidendi
The court found no sufficient grounds to revoke the grant issued and confirmed over twenty years ago, as the applicant had participated in the original proceedings and subdivision process. However, the court recognized that the applicant's portion of land appeared smaller than what was ordered in the certificate of confirmation, based on the mutation forms provided by the respondents. Justice required that the actual sizes of the subdivided parcels be verified through a re-survey to determine compliance with the confirmed grant. The application for revocation was dismissed, but a re-survey was ordered to address the potential discrepancy in land allocation.
Court Disposition
application for revocation of grant dismissed; re-survey of subdivided parcels ordered
Orders
- The application for revocation of grant is dismissed.
- The parcels resulting from the subdivision of LR LOC 20/GIKINDU/GITHURI/195 (LR LOC 20/GIKINDU/GITHURI/2569, 2570, 2571) shall be re-surveyed by the Murang’a County Surveyor to determine their actual sizes and compliance with the certificate of confirmation.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
SUCCESSION CAUSE NO 429 OF 2015
IN THE MATTER OF THE ESTATE OF GICHAGA MUNYUTU, DECEASED
EUNICE WANJIKU P. MUTURI…..….……………APPLICANT
VERSUS
1. GITAU GICHAGA….ADMINISTRATOR/1ST RESPONDENT
2. MUNYUTU GICHAGA………….…..……2ND RESPONDENT
R U L I N G
1. The estate of Gichaga Munyutu, Deceased, was distributed vide Murang’a SRM Succession Cause No 268 of 1992. The necessary grant of letters of administration intestate therein was made on 06/05/1993 to Gitau Gichaga and issued on 10/05/1993. The same was confirmed on 03/02/1994 and certificate of confirmation of grant of that date issued. It was ordered that the estate of the Deceased comprising two parcels of land be distributed as follows –
LR LOC 20/GIKINDU/GITHURI/195
Gitau Gichaga……………………………..10. 0 acres
Eunice Wanjiku P. Muturi……….……..13. 8 acres
Munyutu Gichaga……….……………..…10. 0 acres
LR LOC 20/GIKINDU/GITHURI/259
To Gitau Gichaga as Sole Proprietor
2. Some 21 years down the line, Eunice Wanjiku P. Muturi applied by summons dated 11/06/2015 for revocation of the aforesaid grant. This ruling concerns that application. The grounds for seeking revocation are the usual statutory ones, to wit, that the grant was obtained fraudulently by the making of a false statement, etc. There are two further grounds however –
(i) That the Respondents “took advantage of the fact that the Applicant is illiterate and misled her into believing that the parcel bequeathed to her by the Deceased person was as indicated, i.e. 14. 8 acres but instead they allocated to (her) 13. 8 acres only”.
(ii) That the Respondents have already “unlawfully sub-divided the land with several resultant…parcels totally (at) variance with the confirmed grant”.
The application is supported by the Applicant’s affidavit annexed thereto. In it she gives the factual basis for the application.
3. The Respondents have opposed the application by a replying affidavit sworn by the Administrator/1st Respondent filed on 07/09/2015. In that affidavit are annexed some documents, including mutation forms, which show that the Applicant not only participated in the proceedings before the lower court, but also in the exercise of sub-division of land parcel LR LOC 20/GIKINDU/GITHURI/195 into the three portions ordered in the certificate of confirmation. It is thus too late in the day for the Applicant to complain over twenty (20) years later that there was fraud or concealment of material facts in the proceedings before the lower court.
4. There is absolutely no reason why the court should interfere with the grant issued and confirmed over twenty (20) years ago, and her application for revocation of grant is hereby dismissed.
5. However,the Applicant’s complaint that the Respondents shortchanged her at the actual mutation (sub-division) of LR LOC 20/GIKINDU/GITHURI/195 appears to have substance. The mutation forms exhibited by the Respondents themselves in the replying affidavit show quite clearly that the Applicant’s portion is smaller than those of the Respondents whereas hers should have been bigger than theirs in accordance with the certificate of confirmation!
6. In the circumstances, justice demands that the resulting parcels from the sub-division of LR LOC 20/GIKINDU/GITHURI/195, that is –
LR LOC 20/GIKINDU/GITHURI/2569
LR LOC 20/GIKINDU/GITHURI/2570
LR LOC 20/GIKINDU/GITHURI/2571
be re-surveyed in order to determine their actual sizes, and whether the sub-division was in accordance with the certificate of confirmation. This exercise shall be carried out by the Murang’a County Surveyor who shall file a report in this court within sixty (60) days from the date of delivery of this ruling. Initially the cost of the re-survey shall be borne by the Applicant but ultimately abide the outcome of the re-survey and the further order of the court. It is so ordered.
7. Parties shall bear their own costs of these proceedings.
DATED AND SIGNED AT MURANG’A THIS 6TH DAY OF APRIL 2017
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 7TH DAY OF APRIL 2017