[2023] KEHC 27170 (KLR)
The court held that it lacks jurisdiction to entertain the summons for revocation of grant because the objector's claim is not as a beneficiary or heir but as a person asserting a right to land by trust or adverse possession. Such claims pertain to title and ownership of land, which fall exclusively within the...
Source-derived case information.
- Citation
- [2023] KEHC 27170 (KLR)
- Parties
- Administrator: Peter Keya Chimule; Respondent: Objector (unnamed nephew of deceased)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 137 of 2011
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
- Outcome
- Summons for revocation of grant struck out for lack of jurisdiction; file closed.
- Judges
- PJO Otieno
- Legal Topics
- Revocation of Grant, Jurisdiction of Court, Adverse Possession, Trust in Land, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Keya Chimule
Administrator
Objector (unnamed nephew of deceased)
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
Legal Issues
- 1 Whether the High Court (succession division) has jurisdiction to determine claims of trust or adverse possession over land forming part of a deceased's estate.
- 2 Whether the summons for revocation of grant raising issues of land ownership and title can be entertained in succession proceedings.
Ratio Decidendi
The court held that it lacks jurisdiction to entertain the summons for revocation of grant because the objector's claim is not as a beneficiary or heir but as a person asserting a right to land by trust or adverse possession. Such claims pertain to title and ownership of land, which fall exclusively within the jurisdiction of the Environment and Land Court under Article 162(2)(b) and Article 165(5) of the Constitution. The succession court's role is limited to identifying and distributing the estate to those entitled under succession law, not adjudicating land ownership disputes. Consequently, the summons for revocation of grant was struck out for want of jurisdiction.
Court Disposition
Summons for revocation of grant struck out for lack of jurisdiction; file closed.
Orders
- The summons for revocation of grant is struck out for lack of jurisdiction.
- The court file is to be closed forthwith.
Full Case Text
Judgment text and source record
21 paragraphs
In re Estate of Alfred Chimule Kuto (Deceased) (Succession Cause 137 of 2011) [2023] KEHC 27170 (KLR) (1 December 2023) (Ruling)
Neutral citation: [2023] KEHC 27170 (KLR)
Republic of Kenya
In the High Court at Kakamega
Succession Cause 137 of 2011
PJO Otieno, J
December 1, 2023
IN THE MATTER OF THE ESTATE OF ALFRED CHIMULE KUTO .................DECEASED
In the matter of
Peter Keya Chimule
Administrator
Ruling
1. By Summons for Revocation of grant dated and filed in court on 8. 1.2020, the objector who identifies himself, not as a heir but a nephew to the deceased sought the revocation of the grant made to the administrator on the basis that the land was secretly registered in favour of the deceased to include some six (6) acres that belonged to his grandfather. He adds that he had stayed on the land for over 31 years. Without being explicit the objector tacitly asserts an interest in trust or adverse possession.
2. When served and after parties had filed witness statements, the administrator filed not only a replying affidavit but also a notice of preliminary objection.
3. While the Replying Affidavit asserted that the objector has no interest in the estate, the Notice of Preliminary objection contends that the summons for revocation of grant raises claims on trust to which the court lacks jurisdiction to entertain.
4. On the 14. 3.2023, directions were given that the preliminary objection be canvassed by way of submissions pursuant to which the petitioner filed written submission on 18. 9.2023 while the objector did so on the 5. 10. 2023.
5. The duty of a succession court is simply to determine the net estate of the deceased, identify those entitled in the intestacy as heirs/beneficiaries/or dependants as well as acknowledged/ascertained creditors and to distribute the estate. It is beyond the mandate of the court to seek to determine property rights whether by adverse possession or contested conveyance. Those are disputes that touch on claim to and title over land which are by dint of article 162(2)b as read with article 165(5) of theconstitution vested exclusively for determination by the Environment and Land court.
6. In this matter, the objector is not laying a claim, as a person entitled to inherit from the deceased estate. Far for it. He asserts his entitlement to reclaim a portion of the estate measuring 6 acres which was, in his words, secretly registered into the name of the deceased during the registration process. The objector is clearly asserting a claim over land and challenging the deceased’s title.
7. The court entertains no doubt that it lacks jurisdiction to entertain the summons for revocation of grant. The same is hereby struck out on account of lack of jurisdiction.
8. Having struck out, the objection, and it being clear from paragraph 7 of the Replying Affidavit, that the administration was concluded on 2. 10. 2018 by issuance of title deed in favour of the administrator, it is directed that the court file be closed forthwith.
DATED, SIGNED AND DELIVERED THIS 1ST DAY OF DECEMBER, 2023P.J.O. OTIENOJUDGENo appearance for counsel for partiesParties present:Samuel Kenyatta – presentPeter Mule – Present