[2020] KEHC 9427 (KLR)
The court held that it was functus officio after the adoption of the mediation agreement as a court order, which conclusively settled the succession dispute. The only outstanding issue was the inadvertent omission of land parcel Kabete/Lower Kabete/395 from the certificate of confirmation of grant. The court found...
Source-derived case information.
- Citation
- [2020] KEHC 9427 (KLR)
- Parties
- Applicant: John Gakunyi Wainaina; Applicant: James Ng’ang’a Wainaina; Applicant: George Njenga Wainaina; Applicant: Simon Njenga Wainaina; Applicant: Leonard Muturi Wainaina; Applicant: Beatrice Wanjiku Lubembe; Respondent: Geoffrey Ngunjiri Wainaina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 367 of 2008
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection and Summons for Rectification
- Outcome
- preliminary objection allowed; summons for rectification allowed
- Legal Topics
- Succession of Estates, Court Annexed Mediation, Certificate of Confirmation of Grant, Rectification of Grant, Distribution of Land, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gakunyi Wainaina
Applicant
James Ng’ang’a Wainaina
Applicant
George Njenga Wainaina
Applicant
Simon Njenga Wainaina
Applicant
Leonard Muturi Wainaina
Applicant
Beatrice Wanjiku Lubembe
Applicant
Geoffrey Ngunjiri Wainaina
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection and Summons for Rectification
Legal Issues
- 1 Whether the High Court is functus officio after adoption of a mediation agreement in a succession cause.
- 2 Whether the omission of a property from the certificate of confirmation can be rectified post-mediation.
- 3 Whether the summons for rectification offends the confidentiality and finality of the mediation process.
Ratio Decidendi
The court held that it was functus officio after the adoption of the mediation agreement as a court order, which conclusively settled the succession dispute. The only outstanding issue was the inadvertent omission of land parcel Kabete/Lower Kabete/395 from the certificate of confirmation of grant. The court found that rectification was permissible to include the omitted property, as this did not reopen the substantive issues already settled by mediation. The respondent's arguments regarding jurisdiction and new intervening factors were rejected, as these were not raised in the summons for rectification and did not affect the finality of the mediation agreement. The court allowed the...
Court Disposition
preliminary objection allowed; summons for rectification allowed
Orders
- The preliminary objection is allowed.
- The summons for rectification is allowed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 367 OF 2008
IN THE MATTER OF THE ESTATE OF BENSON WAINAINA WAMBURA (DECEASED)
JOHN GAKUNYI WAINAINA.............................................1ST APPLICANT
JAMES NG’ANG’A WAINAINA.........................................2ND APPLICANT
GEORGE NJENGA WAINAINA.........................................3RD APPLICANT
SIMON NJENGA WAINAINA.............................................4TH APPLICANT
LEONARD MUTURI WAINAINA......................................5TH APPLICANT
BEATRICE WANJIKU LUBEMBE....................................6TH APPLICANT
VERSUS
GEOFFREY NGUNJIRI WAINAINA....................................RESPONDENT
RULING
1. The Applicant filed a Notice of Preliminary Objection dated 8th October 2019 on the ground that this Court lacks Jurisdiction to entertain this suit through viva voce evidence for reasons that the matter has been concluded through Court Annexed Mediation.
2. The parties filed written submissions in the NOPO which I have considered. The Applicants submitted that this Court is functus Officio since the matter has been finalized and further that the proceedings will offend the mandatory provisions of the mediation rules and compromise the confidentiality of the successfully concluded Court Annexed Mediation Process.
3. The Applicant further submitted that the Court Annexed Mediation Process resulted in signing of the Mediation agreement on 27. 7.2019 which agreement was executed by all the parties and their advocates.
4. The Mediation Agreement was adopted as a Court Order and the parties were accordingly notified of the same. The Applicants proceeded to the Court Registry to obtain the Certificate of Confirmation of Grant for the estate in line with the Mediation Agreement.
5. The applicant further submitted that the summons for rectification were filed because one property land parcel No. Kabete/Lower Kabete/395 was mistakenly not included in the certificate of confirmation.
6. The Respondent in their submissions stated that the NOPO lacks in merit as the High Court has Unlimited Jurisdiction under Article 165 (1) (3) of the Constitution in Criminal and Civil Matters.
7. The Respondent also submitted that there are intervening factors such as the death of one of the beneficiaries and also issues to do with the size of the land which will require adjudication through oral evidence.
8. Upon considering the submissions I find that the Respondent does not deny that this matter was conclusively determined during the Mediation Process.
9. I find that the issue at hand is that Land Parcel LR KABETE/LOWER KABETE/395 was omitted by mistake.
10. The issue of the demise of one of the beneficiaries has not been raised in the summons for rectification. I find that this Court is functus officio and lacks jurisdiction to hear this matter which has been settled during the Mediation process.
11. I accordingly allow the NOPO and direct that the Summons for Rectification be allowed and the said parcel of land Title No. KABETE/LOWER KABETE/395 be included in the Certificate of Confirmation.
12. The said Parcel to be distributed in accordance with the Mediation agreement dated 27. 7.2018.
DELIVERED, SIGNED AND DATED IN OPEN COURT THIS 6TH DAY OF MARCH, 2020
ASENATH ONGERI
JUDGE OF THE HIGH COURT OF KENYA, NAIROBI.