[2016] KEHC 2660 (KLR)
The court found that the deceased was not a party to the land dispute before the Vihiga Land Disputes Tribunal and was already the registered proprietor of the land in question since 1997. As such, the tribunal's findings and the subsequent decree could not bind the deceased or affect his estate. The applicant had...
Source-derived case information.
- Citation
- [2016] KEHC 2660 (KLR)
- Parties
- Applicant: Hellen Indata; Respondent: Lucianah Owila Asitiba
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 736 of 2014
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application dismissed
- Judges
- DAS Majanja
- Legal Topics
- Revocation of Grant, Land Ownership Disputes, Beneficiary Status, Effect of Tribunal Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hellen Indata
Applicant
Lucianah Owila Asitiba
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant issued to the respondent should be revoked due to alleged non-disclosure of the applicant's interest in the disputed land parcel.
- 2 Whether the applicant has a valid claim to Land Parcel No. BUNYORE/EBUSIEKWE/1966 as against the estate of the deceased.
- 3 Whether the findings of the Vihiga Land Disputes Tribunal and the subsequent decree bind the deceased who was not a party to those proceedings.
Ratio Decidendi
The court found that the deceased was not a party to the land dispute before the Vihiga Land Disputes Tribunal and was already the registered proprietor of the land in question since 1997. As such, the tribunal's findings and the subsequent decree could not bind the deceased or affect his estate. The applicant had no relationship with the deceased other than the land claim, and any relief regarding the land could only be sought from Jacob, not from the estate. Therefore, there was no basis for revocation of the grant issued to the respondent, as there was no concealment of material facts or valid claim against the estate by the applicant.
Court Disposition
application dismissed
Orders
- The summons for revocation of grant is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
SUCCESSION CAUSE NO. 736 OF 2014
IN THE MATTER OF THE ESTATE OF
WELLINGTONE ASITIBA OPEYWA (DECEASED)
BETWEEN
HELLEN INDATA ………………………............… APPLICANT
AND
LUCIANAH OWILA ASITIBA … RESPONDENT/PETITIONER
RULING
2. The application before the court is a summons for revocation of a grant dated 6th October, 2015, The applicant HELEN INDATA (“Hellen”) seeks to revoke the grant dated 28th October 2014 issued toLUCIANAH OWILA ASITIBA, the widow of WELLINGTON ASITIBA OPEYWA (“the deceased”) who died on 14th November 2013.
2. According to the applicant, the administrator failed to disclose that the applicant had a decree in her favour granting her Land Parcel No. BUNYORE/EBUSIEKWE/1966 (“Plot 1966”). According to her deposition sworn dated 6th October 2015, Hellen stated that there was a land dispute between JACOB ABUYEKA KOLI (“Jacob”) and herself which was heard by the Vihiga Land Disputes Tribunal and a decision issued in her favour. The decision was adopted by the Senior Resident Magistrate Court Vihiga, Misc. Application No. 28 of 2002and a decree dated 8th June 2003 issued awarding Plot 1966 to her. She claimed, Jacob secretly sold the land to the deceased in 1997. She urges the court to effect the decree and hold that the Plot 1966 belongs to her.
3. The applicant's case was presented by the daughter, Alice Anindo Mayoya (“Alice”). She told the court that Hellen was 93 years old, bedridden and could not travel or communicate with court. She narrated her mother's version of events set out in the application and deposition.
4. The application was opposed through the replying affidavit of the administrator sworn on 18th November 2015. According to her, the subject land was purchased by the deceased and registered in 1997 and upto the time of his demise no one challenged his registration. She stated that he was not involved in the land case at Vihiga and added that Hellen is not a beneficiary of the deceased’s estate and has no claim over it.
5. I have considered the facts and it is not in dispute that the deceased bought the land in 1997 and became its registered proprietor. He was not involved in the case before the Tribunal and as such the findings therein could not bind him. Plot 1966 is therefore part of the free property of the deceased. Alice admitted that apart from this claim based on the land dispute, there is no relationship between Hellen and the deceased. Any claim to the land or any other relief can only be claimed from Jacob.
6. This being the position, the summons for revocation cannot be sustained. It is dismissed with no order as to costs.
DATED and DELIVERED at KISUMU this 11th day of October 2016.
D. S. MAJANJA
JUDGE