[2023] KEHC 26218 (KLR)
The court found that the applicant failed to demonstrate any of the statutory grounds for revocation of the grant as provided under Section 76 of the Law of Succession Act. The evidence did not establish that the grant was obtained through defective proceedings, fraud, concealment of material facts, or untrue...
Source-derived case information.
- Citation
- [2023] KEHC 26218 (KLR)
- Parties
- Respondent: Tarcisio Riungu Ikwa; Applicant: Jerina Kiuria Mwiti
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 183 of 2004
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Revocation of Grant, Distribution of Estate, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tarcisio Riungu Ikwa
Respondent
Jerina Kiuria Mwiti
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the applicant has established grounds for revocation of the grant under Section 76 of the Law of Succession Act.
- 2 Whether the alleged sale and apportionment of estate property justifies revocation of the grant.
- 3 Whether topographical issues regarding LR. Nkuene/Ngonyi/1215 constitute a ground for revocation.
Ratio Decidendi
The court found that the applicant failed to demonstrate any of the statutory grounds for revocation of the grant as provided under Section 76 of the Law of Succession Act. The evidence did not establish that the grant was obtained through defective proceedings, fraud, concealment of material facts, or untrue allegations. The court further held that issues relating to the topography or distribution of LR. Nkuene/Ngonyi/1215, while potentially triable, do not amount to grounds for revocation. Consequently, the application for revocation was found to lack merit and was dismissed. The court urged the parties to cooperate to ensure the distribution of the remaining estate property to the...
Court Disposition
application dismissed
Orders
- The application dated July 6, 2023 is disallowed.
- The family of the late Joseph Mwiti M’Ikwa is urged to cooperate with the Petitioner to ensure distribution of LR. Nkuene/Ngonyi/1215.
Full Case Text
Judgment text and source record
26 paragraphs
In re Estate of Ikwa Kariginyu alias M’ikwa Kariginyu (Deceased) (Succession Cause 183 of 2004) [2023] KEHC 26218 (KLR) (30 November 2023) (Ruling)
Neutral citation: [2023] KEHC 26218 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 183 of 2004
TW Cherere, J
November 30, 2023
IN THE MATTER OF THE ESTATE OF IKWA KARIGINYU alias M’IKWA KARIGINYU (DECEASED)
Between
Tarcisio Riungu Ikwa
Applicant
and
Jerina Kiuria Mwiti
Applicant
Ruling
Introduction 1. Ikwa Kariginyu alias M’Ikwa Kariginyu (Deceased) died sometimes on March 14, 2002. Letters of Administration were issued to Tarcisio Riungu Ikwa (Petitioner/Respondent) on May 18, 2005. Subsequently, deceased’s estate was distributed in terms of the Certificate of Confirmation of Grant dated February 13, 2017 and was subsequently rectified on March 7, 2017.
2. By summons dated July 6, 2023 filed on July 14, 2023 which is supported by applicant’s affidavit sworn on July 6, 2023, Applicant avers that the Petitioner/Respondent caused deceased’s estate in LR. Nkuene/Ngonyi/137 to be portioned into five portions namely LR. Nkuene/Ngonyi/1212 – 2016, sold off LR. Nkuene/Ngonyi/1213, 1214 and 1216 and apportioned LR. Nkuene/Ngonyi/ 1215 which is locked between LR. Nkuene/Ngonyi/1214 and 1216 and is therefore incapable of being distributed to seven beneficiaries of the late Joseph Mwiti M’Ikwa.
3. By his replying affidavit sworn on October 4, 2023, petitioner/respondent confirms that both Benard Kimathi Mstienjawa and Sabastiano Mutembei purchased denies selling LR. Nkuene/Ngonyi/1214 and 1216 respectively and he subsequently sold LR. Nkuene/Ngonyi/1213 to one Samson Kiruguti John. He avers that LR. Nkuene/Ngonyi/1215 is available for distribution to the family of the late Joseph Mwiti M’Ikwa which include the Applicant and denies that any boundary passes through the Applicant’s house. His averments are supported by Applicant’s co-wife Juster Karimi Mungiria in her affidavit sworn on October 24, 2023
Analysis and determination 4. I have considered the application in the light of the affidavits and submissions filed on behalf of the parties.
5. Under Section 76 Law of Succession, a grant can be revocation either on the application of an interested party or on the court’s own motion where there is evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law. (See Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR and re Estate of Prisca Ong'ayo Nande (Deceased) [2020] eKLR.
6. From the affidavit evidence on record, the Applicant has not demonstrated existence of any of the grounds for revocation set out in the foregoing section.
7. Whereas the issue of topography of LR. Nkuene/Ngonyi/1215 which is the portion identified for the family of the late Joseph Mwiti M’Ikwa may be a triable issue, it is nonetheless not a ground for revocation of a grant.
8. In the end, the application dated July 6, 2023 filed on July 14, 2023 is considered and found to have no merit and it is disallowed.
9. The family of the late Joseph Mwiti M’Ikwa is urged to cooperate with the Petitioner to ensure distribution of LR. Nkuene/Ngonyi/1215 to his family
10. Mention on February 29, 2024 to confirm distribution
DATED AT MERU THIS 30TH DAY OF NOVEMBER 2023WAMAE. T. CHEREREJUDGEAppearancesFor Applicant - Mr. Mokua for Mokua Obiria & Co. AdvocatesFor Petitioner/Respondent – Ms. Athieno for J.K.Ntarangwi & Co. Advocates