[2019] KEHC 850 (KLR)
The court found that the applicants were acknowledged as purchasers in the liabilities section of form P. & A. 5 by the administrator, which constituted an admission of their interests in the estate. The omission of the applicants at the confirmation stage was not explained by the respondent, and the subsequent...
Source-derived case information.
- Citation
- [2019] KEHC 850 (KLR)
- Parties
- Respondent: Caroline Atieno Ondewe; Applicant: Wilfred Odwori Kefa; Applicant: Antony Pilly Muliro; Applicant: Christopher Ndungu; Applicant: Desterio Ngayi Oduori
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 122 of 2011
- Procedural Posture
- Probate and Administration / Ruling on Application to Revoke Certificate of Confirmation of Grant
- Outcome
- application allowed; certificate of confirmation of grant revoked; land parcel restored; fresh application for confirmation ordered
- Judges
- KW Kiarie
- Legal Topics
- Revocation of Grant, Purchaser Rights in Estate, Liabilities in Succession, Confirmation of Grant, Estate Distribution, Land Parcel Subdivision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Caroline Atieno Ondewe
Respondent
Wilfred Odwori Kefa
Applicant
Antony Pilly Muliro
Applicant
Christopher Ndungu
Applicant
Desterio Ngayi Oduori
Applicant
Procedural Posture
Probate and Administration / Ruling on Application to Revoke Certificate of Confirmation of Grant
Legal Issues
- 1 Whether the certificate of confirmation of grant should be revoked due to omission of purchasers from the distribution of the estate.
- 2 Whether the applicants, as purchasers, are entitled to be included in the distribution of the deceased's estate.
- 3 Whether the subdivision and new numbers arising from parcel SAMIA/BUTABONA/111 should be cancelled.
Ratio Decidendi
The court found that the applicants were acknowledged as purchasers in the liabilities section of form P. & A. 5 by the administrator, which constituted an admission of their interests in the estate. The omission of the applicants at the confirmation stage was not explained by the respondent, and the subsequent initiation of eviction proceedings against one of the applicants demonstrated an intention to defeat their claim. The court held that the confirmation of grant was made without the applicants' knowledge and with the aim of denying them their acknowledged interests. Consequently, the court revoked the confirmed grant, cancelled the resultant subdivisions of the land, and directed...
Court Disposition
application allowed; certificate of confirmation of grant revoked; land parcel restored; fresh application for confirmation ordered
Orders
- The grant that was confirmed herein is revoked.
- The resultant subdivision of land parcel number SAMIA/BUTABONA/111 is hereby revoked and the parcel restored to its original owner.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO.122 OF 2011
IN THE MATTER OF THE ESTATE OF:
CLEOPHAS MARK ONDEWE MUGWANG’A...................................DECEASED
BETWEEN
CAROLINE ATIENO ONDEWE..........................PETITIONER/ RESPONDENT
AND
1. WILFRED ODWORI KEFA
2. ANTONY PILLY MULIRO
3. CHRISTOPHER NDUNGU
4. DESTERIO NGAYI ODUORI .......INTERESTED PARTIES/APPLICANTS
RULING
1. The applicants herein moved the court by way of chamber summons dated 5th July 2018 under sections 76 & 85 of the Law of Succession Act and Rule 73 Probate and Succession Rules. They are seeking the following orders:
a) That this honourable court revoke and or annul the certificate of confirmation of grant issued on 11th December 2014.
b) That this court issue an order to cancel any new numbers that arose from parcel number SAMIA/BUTABONA/111
c) That this court reissue an amended certificate of confirmation of grant to accommodate their claims.
2. The application is premised on the following grounds:
a) That the applicants had purchased land from the estate of the deceased herein.
b) That the administrator had included them in form P. & A. 5 in the liabilities section but omitted them during confirmation.
c) That the administrator has commenced proceedings to evict them.
3. On the 23rd September 2019, the parties sought to have the application disposed of by way of written submissions. Later the respondent’s counsel indicated that they did not wish to file any submissions and opted to rely on the replying affidavit.
4. Upon my perusal of the submissions, and the replying affidavit as well as the record, the following facts emerge:
a) That in the P. &A. 5 form, the petitioner/administrator had included the applicants in the liability section.
This was therefore an acknowledgement that they were recognized as purchasers. The contention that they purchased the land after the demise of the deceased is tantamount to amending what had already been acknowledged earlier without any justification.
b) That in the application for confirmation the applicants were left out.
There being no explanation why they were left out, one is tempted to agree with the applicants that the confirmation was made without their knowledge with an aim of defeating their claim.
c) There is evidence that the petitioner respondent has initiated a civil suit number 128 of 2018 in the Busia Chief Magistrate’s Court to evict Wilfred Odwori Kefa, one of the applicants herein.
This further demonstrates that the petitioner’s intention when she omitted the applicants from the distribution of the estate was to deny them what she had already acknowledged at the commencement of this succession cause.
5. The application is therefore allowed in the following terms:
a) That the grant that was confirmed herein is revoked.
b) That the resultant subdivision of land parcel number SAMIA/BUTABONA/111 is hereby revoked and the parcel restored to its original owner.
c) That the petitioner/respondent herein is directed to file in court a fresh application for confirmation to cater for all beneficiaries who must include the applicants herein within 30 days. Failure to do so, the applicants be at liberty to move the court.
d) Costs of this application to the applicants.
DELIVEREDandSIGNEDatBUSIAthis10th dayof December, 2019
KIARIE WAWERU KIARIE
JUDGE