[2019] KEHC 4167 (KLR)
The court found that although the objection to confirmation of grant was not in the prescribed form, the substance of the claim was clear and should not be defeated by procedural technicalities. The court further held that a prior decision had conclusively determined the objectors' rights to the portion of land they...
Source-derived case information.
- Citation
- [2019] KEHC 4167 (KLR)
- Parties
- Respondent: Everline Awino; Respondent: Robert Barasa; Applicant: Philip Omani Kuchuru; Applicant: Philip Ondeko Okaya
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 46 of 2013
- Procedural Posture
- Probate and Administration / Ruling on Objection to Confirmation of Grant
- Outcome
- objection sustained
- Judges
- KW Kiarie
- Legal Topics
- Succession of Estates, Confirmation of Grant, Purchaser Interest in Estate, Beneficiary Inclusion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Everline Awino
Respondent
Robert Barasa
Respondent
Philip Omani Kuchuru
Applicant
Philip Ondeko Okaya
Applicant
Procedural Posture
Probate and Administration / Ruling on Objection to Confirmation of Grant
Legal Issues
- 1 Whether the objectors, as purchasers of part of the deceased's estate, should be included as beneficiaries in the confirmation of grant.
- 2 Whether procedural defects in the objection invalidate the objectors' claim.
- 3 Whether a prior court decision in favour of the objectors is binding in this succession cause.
Ratio Decidendi
The court found that although the objection to confirmation of grant was not in the prescribed form, the substance of the claim was clear and should not be defeated by procedural technicalities. The court further held that a prior decision had conclusively determined the objectors' rights to the portion of land they purchased from the deceased, and since this decision was not appealed, it is binding. Therefore, the objectors must be included as beneficiaries and allocated the portion previously determined by the court.
Court Disposition
objection sustained
Orders
- The petitioners are ordered to include the objectors in the list of beneficiaries.
- The objectors are to be given the portion they had purchased as determined by the court.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO.46 OF 2013
IN THE MATTER OF THE ESTATE OF:
DAVID BONZO OYUGI........................................................DECEASED
BETWEEN
EVERLINE AWINO
ROBERT BARASA............................PETITIONERS/ RESPONDENTS
AND
PHILIP OMANI KUCHURU
PHILIP ONDEKO OKAYA.....................OBJECTORS/APPLICANTS
RULING
1. On 19th January 2017 the objectors herein filed an objection to the confirmation of the grant herein. The objection was premised on the following grounds:
a) That they purchased part of the estate of the deceased from the deceased.
b) That by the time the deceased died, he had not transferred the land to them.
c) That the petitioners did not include them as beneficiaries.
d) That there was a court decision on the same and which the petitioners did not appeal against.
2. The application was opposed on the following grounds:
a) That the objectors are not heirs of the deceased;
b) That the objection offended Order 40 Rule 6 of Probate and administration Rules.
c) That the objectors have not availed evidence of purchase of the said land.
3. On the 29th January 2019, the parties sought to have the application disposed of by way of written submissions.
4. Rule 40 sub Rule 6 of Probate and Administration Rules ( which was wrongly cited as Order 40 Rule 6 of Probate and administration Rules ) provides:
Any person wishing to object to the proposed confirmation of a grant shall file in the cause in duplicate at the principal registry an affidavit of protest in Form 10 against such confirmation stating the grounds of his objection.
In my view the want of form cannot be used to defeat a claim where the claim comes out clearly. The objection in this case cannot fail due to want of form.
5. I have perused the evidence affidavits and the submissions and I make a finding that there is a decision of the court in favour of the objectors. This decision was not appealed against. The rights of the objectors were therefore conclusively determined and cannot be an issue in this succession cause.
6. The objection is therefore sustained and the petitioners are hereby ordered to include the objectors in the list of beneficiaries and be given the portion they had purchased as had been determined by the court.
7. Costs of this application be borne by the petitioners.
DELIVEREDandSIGNEDatBUSIAthis26th dayof September, 2019
KIARIE WAWERU KIARIE
JUDGE