[2020] KEHC 3026 (KLR)
The High Court found that the trial magistrate erred by failing to consider the evidence indicating the existence of six beneficiaries as per the letter from the Senior Chief, Kakapel location, who were not provided for in the grant. This omission constituted sufficient grounds for revocation of the grant under the...
Source-derived case information.
- Citation
- [2020] KEHC 3026 (KLR)
- Parties
- Appellant: Fredrick Epalat; Respondent: Albert Asike Osioyi
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 2 of 2018
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- KW Kiarie
- Legal Topics
- Succession Proceedings, Revocation of Grant, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Epalat
Appellant
Albert Asike Osioyi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in dismissing the application for revocation of grant despite unchallenged evidence.
- 2 Whether the trial magistrate failed to consider the replying affidavit and relevant law in dismissing the application.
- 3 Whether the omission of all beneficiaries in the grant justified its revocation.
Ratio Decidendi
The High Court found that the trial magistrate erred by failing to consider the evidence indicating the existence of six beneficiaries as per the letter from the Senior Chief, Kakapel location, who were not provided for in the grant. This omission constituted sufficient grounds for revocation of the grant under the Law of Succession Act. The court held that all beneficiaries must be included and provided for in the administration of the estate. Consequently, the confirmed grant was revoked, and both the appellant and respondent were appointed as joint administrators, with directions to file a fresh proposal for distribution.
Court Disposition
appeal allowed
Orders
- The confirmed grant is revoked.
- The appellant and respondent are appointed joint administrators of the estate.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CIVIL APPEAL NO. 2 OF 2018
BETWEEN
FREDRICK EPALAT ............................................APPELLANT
AND
ALBERT ASIKE OSIOYI ................................ RESPONDENT
(Being an Appeal from the ruling in Busia Chief Magistrate’s Succession Case No. 99 of 2016 by Hon. W.K. Chepseba-Chief Magistrate).
JUDGMENT
1. The appellant herein, had by an application dated 27th October, 2016 applied for the revocation of grant. After the hearing of the application, the learned trial magistrate dismissed it.
2. The appellant was aggrieved by the ruling and filed this appeal. The appellant was represented by the firm of Okeyo Ochiel & Company Advocates. He raised the following grounds:
a) That the learned trial magistrate erred in law and in fact in dismissing of the application for revocation of grant when all the evidence was not challenged.
b) That the learned trial magistrate erred in law and in fact in dismissing the application without considering the replying affidavit.
c) That the learned magistrate erred in law and in fact in dismissing the application without considering the implication of the relevant laws and the Constitution.
3. The respondent was in person. He opposed the appeal and urged that it be dismissed.
4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.
5. Busia Chief Magistrate Succession Cause No. 99 of 2016 was commenced after citation proceedings and the appellant herein failed to file a succession cause. This therefore paved the way for the respondent to do so.
6. The application before the learned magistrate was premised on the following grounds:
a) The purported beneficiaries were sufficiently provided by the deceased in his life and home.
b) The purported beneficiary Albert Esike Osionyi is illegally (sic) and he has no legal documents to claim ownership that the same Albert has unpaid debt over the general land.
c) The grant was not merited to be confirmed.
7. After hearing both parties, the learned trial magistrate made a finding that there were no adequate reasons to warrant the revocation of the grant.
8. The succession cause that gave rise to the present appeal was filed by a citor. He only indicted his name and that of Esusur Sirari as beneficiaries. However, a letter dated 30th November 2015 from the office of the Senior Chief, Kakapel location, indicated the existence of six beneficiaries. These beneficiaries were not provided for. This was therefore sufficient ground for revocation of the grant.
9. The appeal is therefore allowed and consequently the confirmed grant is accordingly revoked. The appellant and the respondent are hereby appointed joint administrators of the estate. They ought to file a fresh proposal for distribution in the magistrate’s court within 30 days of this ruling. Failure to comply without the court extending such a time, then the appointment will automatically be revoked.
10. Each party to bear own costs.
DELIVEREDandSIGNEDatBUSIAthis30th day of September,2020
KIARIE WAWERU KIARIE
JUDGE