[2020] KEHC 7891 (KLR)
The court found that the applicants lacked the requisite legal capacity to bring the application for revocation or rectification of the grant, as they were not representatives of the estate of Margaret Magiri (deceased) or Kibe Mariba (deceased). While acknowledging that the applicants may have a genuine claim, the...
Source-derived case information.
- Citation
- [2020] KEHC 7891 (KLR)
- Parties
- Applicant: John Mbiri Gachoka; Applicant: Lukas Kairu Wairimu; Respondent: Stephen Kaguku Mariba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 346 of 1986
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation or Rectification of Grant
- Outcome
- application declined for want of legal capacity
- Judges
- A Ali-Aroni
- Legal Topics
- Revocation of Grant, Rectification of Grant, Capacity of Applicants, Distribution of Estate, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mbiri Gachoka
Applicant
Lukas Kairu Wairimu
Applicant
Stephen Kaguku Mariba
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation or Rectification of Grant
Legal Issues
- 1 Whether the grant issued to the respondent should be revoked or rectified to exclude or limit the inclusion of L.R. No. Kiganjo/Kiganjo/110 in the estate of the deceased.
- 2 Whether the applicants have the legal capacity to bring the application for revocation or rectification of the grant.
Ratio Decidendi
The court found that the applicants lacked the requisite legal capacity to bring the application for revocation or rectification of the grant, as they were not representatives of the estate of Margaret Magiri (deceased) or Kibe Mariba (deceased). While acknowledging that the applicants may have a genuine claim, the court held that the application could not be determined on its merits until the applicants obtained the necessary legal standing. Accordingly, the application was declined, but the applicants were granted liberty to re-apply once they acquire legal capacity.
Court Disposition
application declined for want of legal capacity
Orders
- The application dated 28th June, 2019 is declined for now.
- Applicants are at liberty to re-apply once they obtain legal capacity.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
(FAMILY DIVISION)
SUCCESSION CAUSE NO 346 OF 1986
IN THE MATTER OF THE ESTATE OF DANIEL WAINAINA GACHOKA
ALIAS DANIEL MARIBA GACHOKA (DECEASED)
JOHN MBIRI GACHOKA............................................................1ST APPLICANT
LUKAS KAIRU WAIRIMU..........................................................2ND APPLICANT
VERSUS
STEPHEN KAGUKU MARIBA....................................................RESPONDENT
R U L I N G
1. The application subject of this ruling is dated 28th June, 2019 and brought pursuant to Section 76of theLaw of Succession ActandRule 44(1)of theProbate and Administration Rules.
2. The same seeks to have the grant issued to Stephen Kaguku Mariba revoked or amended to remove parcel known as L.R. No. Kiganjo/Kiganjo/110 from the assets of the deceased or in the alternative the grant be rectified so that only ½ of the said property is reflected as belonging to the estate of herein in line with a ruling in High Court Succession Cause No. 1554 of 1989 and Court of Appeal Case Number 188 of 2002.
3. The application is based on grounds that despite knowledge of the decision in the two cases named above the Respondent proceeded to include the entire portion of land and subdivided the same to his family and in essence disinheriting the off springs of Margaret Magiri (deceased).
4. The application was objected to by the Respondent Stephen Kaguku Mariba by way of an affidavit dated 8th July, 2019, a supplementary affidavit of 7th July, 2019 & a preliminary objection which objection was dismissed.
5. The Respondent in his affidavits questions the capacity of the two applicants, secondly he raised issue since the decree of the High court and Court of Appeal remain unfulfilled for 13 and 19 years respectively.
Further, he contended that the family of Margaret Magiri (deceased) resides on L.R. No. Kiganjo/Kiganjo/198 and are not beneficiaries of this estate.
6. I have considered the matter and do concur with the respondent on the applicants capacity to bring this application as they are neither the representatives of the estate of Margaret Magiri (deceased) nor the estate of Kibe Mariba (deceased) though I note that the applicants may have a genuine claim nonetheless.
7. Consequently, I will decline the application for now. The applicants be at liberty to re-apply as the application is not yet determined on merit once they obtain legal capacity.
8. Costs in the cause.
Dated and Delivered in Nairobi on this26TH day of FEBRUARY, 2020.
ALI-ARONI
JUDGE