[2006] KEHC 176 (KLR)
The court found that the respondents obtained a second grant in respect of the same estate while the first grant was still in existence and under appeal. The failure to disclose the existence of the first grant and the pending appeal to the Resident Magistrate’s Court at Kerugoya constituted non-disclosure of...
Source-derived case information.
- Citation
- [2006] KEHC 176 (KLR)
- Parties
- Appellant: Francis Thiaka Njagi; Appellant: James Njagi Thiaka; Appellant: Justin Ngugi Thiaka; Respondent: Mary Kanini Muriithi; Respondent: Francis Wachira Muriithi; Respondent: Joseph Waweru Muriithi; Respondent: Stephenson Gikunju Thiaka
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 29 of 2005
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Legal Topics
- Annulment of Grant, Non Disclosure of Material Facts, Fraudulent Obtaining of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Thiaka Njagi
Appellant
James Njagi Thiaka
Appellant
Justin Ngugi Thiaka
Appellant
Mary Kanini Muriithi
Respondent
Francis Wachira Muriithi
Respondent
Joseph Waweru Muriithi
Respondent
Stephenson Gikunju Thiaka
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the grant was obtained by non-disclosure of material facts.
- 2 Whether the existence of an appeal in respect of the first grant precluded the issuance and confirmation of a second grant.
- 3 Whether the conduct of obtaining a second grant amounted to fraud.
Ratio Decidendi
The court found that the respondents obtained a second grant in respect of the same estate while the first grant was still in existence and under appeal. The failure to disclose the existence of the first grant and the pending appeal to the Resident Magistrate’s Court at Kerugoya constituted non-disclosure of material facts and demonstrated fraudulent intent. The court held that such conduct vitiates the validity of the second grant, and therefore, the application for annulment was merited. The court allowed the application and granted the orders as prayed, with costs to the applicants.
Court Disposition
application allowed
Orders
- The application for annulment of grant is allowed.
- Orders as prayed in the application are granted.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Misc Civil 29 of 2005
FRANCIS THIAKA NJAGI………………………..1ST APPELLANT
JAMES NJAGI THIAKA ………………………….2ND APPELLANT
JUSTIN NGUGI THIAKA ……………………..….3RD APPELLANT
VERSUS
MARY KANINI MURIITHI………………….......1ST RESPONDENT
FRANCIS WACHIRA MURIITHI……….....…..2ND RESPONDENT
JOSEPH WAWERU MURIITHI………….....….3RD RESPONDENT
STEPHENSON GIKUNJU THIAKA……….......4TH RESPONDENT
JUDGMENT
There is before the court an application for annulment of grant on the ground that it was obtained by non disclosure of material facts. I have perused the application and the supporting affidavit together with annextures and I find that while the first grant was issued and confirmed and it is still under appeal No. 188/1995 at Nairobi the applicant moved to the court of Resident Magistrate’s Court Kerugoya and filed Succession Cause No. 52/2002 in the same estate and got the grant and got it confirmed. This conduct shows the fraudulent intention in obtaining the second grant.
I therefore allow application and grant orders as prayed.
Costs to the applicants.
Dated this 3rd July, 2006.
J. N. KHAMINWA
JUDGE
3/7/2006
Khaminwa –Judge
Njue - Clerk
M/S Wairimu
Ruling read in her presence.
J .N. KHAMINWA
JUDGE