[2020] KEHC 7267 (KLR)
The court found that the applicants, as grandchildren of the late Esther Khayanje Amiani, were provided for through the allocation of 3.85 Ha to their grandmother's house in the prior ruling. The applicants failed to demonstrate that their grandmother was entitled to any additional share or that they were excluded...
Source-derived case information.
- Citation
- [2020] KEHC 7267 (KLR)
- Parties
- Defendant: Zipporah Amiani; Defendant: Gladys Inyanje; Plaintiff: Edward Amiani; Applicant: Centrick Murambi Magotswe; Applicant: Ian Konzerani Magotswe; Respondent: Henry Amiani Murambi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 617 of 1995
- Procedural Posture
- Succession Cause / Ruling on Application for Review, Joinder, and Injunction
- Outcome
- Application for oral evidence declined; application to proceed by oral arguments; no review or injunctive relief granted at this stage.
- Judges
- CM Njagi
- Legal Topics
- Succession and Inheritance, Joinder of Parties, Review of Court Orders, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zipporah Amiani
Defendant
Gladys Inyanje
Defendant
Edward Amiani
Plaintiff
Centrick Murambi Magotswe
Applicant
Ian Konzerani Magotswe
Applicant
Henry Amiani Murambi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review, Joinder, and Injunction
Legal Issues
- 1 Whether the applicants, as grandchildren of the deceased, were adequately provided for through their grandmother's share in the estate.
- 2 Whether the applicants have demonstrated a triable issue warranting the calling of oral evidence.
- 3 Whether the orders of 27/6/2018 should be reviewed or set aside to identify the applicants' rightful share.
Ratio Decidendi
The court found that the applicants, as grandchildren of the late Esther Khayanje Amiani, were provided for through the allocation of 3.85 Ha to their grandmother's house in the prior ruling. The applicants failed to demonstrate that their grandmother was entitled to any additional share or that they were excluded from the distribution. No triable issue was disclosed in their application to warrant the calling of oral evidence. Consequently, the court declined the request for oral evidence and ordered that the application proceed by way of oral arguments only. The application for review, joinder, and injunctive relief was not granted at this stage, and the prior orders remained in force.
Court Disposition
Application for oral evidence declined; application to proceed by oral arguments; no review or injunctive relief granted at this stage.
Orders
- The application to proceed by way of oral evidence is declined.
- The application shall proceed by way of oral arguments.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 617 OF 1995
IN THE MATTER OF THE ESTATE OF DANIEL MURAMBI AMIANI (DECEASED)
ZIPPORAH AMIANI...............................................1ST PETITIONER/DEFENDANT
GLADYS INYANJE.................................................2ND PETITIONER/DEFENDANT
VERSUS
EDWARD AMIANI................................................................OBJECTOR/PLAINTIFF
AND
CENTRICK MURAMBI MAGOTSWE...1ST INTERESTED PARTY/APPLICANT
IAN KONZERANI MAGOTSWE.............2ND INTERESTED PARTY/APPLICANT
AND
HENRY AMIANI MURAMBI.................................................................RESPONDENT
RULING
1. This court on the 27th June, 2018 delivered a ruling in which it allocated the house of the late Esther Khayanje Amiani a portion of land measuring 3. 85 Ha out of the estate of the deceased herein. Henry Amiani Murambi was allocated 1. 06 Ha.
2. The interested parties/applicants herein have filed an application dated 12th July, 2018 stating that they are grandchildren of the late Esther Khayanje Amiani. That their father was a son of the late Esther Amiani. That they are occupying a portion of land that was allocated to their father. That Henry Amiani has encroached on to the said portion and is cultivating it by force. That the said encroachment is contrary to this court’s ruling delivered on 27/6/2018. They are seeking for injunctive orders against the said Henry Amiani and that they be enjoined in this cause. They are further seeking that the orders of the court issued by the ruling of 27/6/2018 be reviewed and or set aside with a view to identifying the rightful share of the applicants.
3. The application was opposed by Henry Amiani who deponed an affidavit denying that he has encroached into the interested parties’ portion of land.
4. Mr. Osango, advocate for the applicants has sought that the application be heard by way of oral evidence. Mr. Mukavale for petitioners was on the other hand of the view that there is no need to call oral evidence. That the question is whether the applicants were provided for. That the application should proceed by way of oral urguements.
5. Miss Andia for one of the parties supported the position taken by Mr. Mukavale as objection proceedings have been heard and concluded.
6. I have considered the submissions by the advocates for the parties. The applicants are grandchildren of the late Esther Khayanje Amiani. The house of the late Esther Khayanje Amiani was allocated 3. 85 Ha out of the estate of the deceased herein. The question then is whether the applicants were therefore provided for through their grandmother. For the court to order for oral evidence to be called the applicants must demonstrate that there is a triable issue. The applicants have not stated whether their grandmother was entitled to anything else over and above what was allocated to her house. There is no triable issue disclosed in the application. The application by Mr. Osango that the matter proceeds by way of oral evidence is declined. It is ordered that the application proceeds by way of oral urguements.
Delivered, dated and signed in open court at Kakamega this 11th day of March, 2020.
J. N. NJAGI
JUDGE
In the presence of:
No appearance for Interested Parties/Applicants
Mr. Indimuli for Petitioners & Respondent
………………………. for Objector
Parties:
Interested Parties/Applicants - Absent
Petitioners – Absent
Respondent - Present
Objector - Absent
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