[2018] KEHC 937 (KLR)
The court held that the applicants' claim was based solely on a contractual relationship (a lease agreement) with the deceased, and not on any beneficial interest in the estate. The Law of Succession Act and the Probate and Administration Rules do not contemplate the adjudication of such contractual disputes within...
Source-derived case information.
- Citation
- [2018] KEHC 937 (KLR)
- Parties
- Respondent: Michael Masai Wafula; Applicant: Kennedy Muyundo; Applicant: Vivian K. Lugalia
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 192 of 2014
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
- Outcome
- preliminary objection upheld; application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Revocation of Grant, Locus Standi, Succession Proceedings, Leasehold Interests
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Masai Wafula
Respondent
Kennedy Muyundo
Applicant
Vivian K. Lugalia
Applicant
Procedural Posture
Succession Cause / Ruling on Preliminary Objection to Summons for Revocation of Grant
Legal Issues
- 1 Whether the applicants have locus standi to seek revocation of grant based on a lease agreement with the deceased.
- 2 Whether the succession court is the proper forum to determine contractual disputes arising from a lease agreement involving the estate.
Ratio Decidendi
The court held that the applicants' claim was based solely on a contractual relationship (a lease agreement) with the deceased, and not on any beneficial interest in the estate. The Law of Succession Act and the Probate and Administration Rules do not contemplate the adjudication of such contractual disputes within succession proceedings. The proper forum for resolving issues arising from the lease, such as rent arrears or termination, is outside the succession court, such as the Rent Tribunal or other legally provided channels. Consequently, the applicants lacked locus standi to seek revocation of the grant, and the preliminary objection was upheld.
Court Disposition
preliminary objection upheld; application dismissed
Orders
- The preliminary objection is upheld.
- The application dated 19/7/2018 is dismissed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 192 OF 2014
IN THE MATTER OF THE ESTATE OF JAMES MASAI WAFULA - DECEASED
MICHAEL MASAI WAFULA.............................................PETITIONER/RESPONDENT
VERSUS
KENNEDY MUYUNDO ...........................................................................1ST APPLICANT
VIVIAN K. LUGALIA .............................................................................2ND APPLICANT
R U L I N G
1. The summons for revocation of grant dated 19/7/2016 by the applicants seeks that the grant issued to the petitioner herein be revoked on the ground that he did not consider their interest and specifically the lease contract entered between the deceased and them on 1/04/2014.
2. The applicants have in their supporting affidavit attached several annextures which included the lease agreement itself as well as the improvements therein. The court has perused the same extensively.
3. The Respondents have on their part raised a preliminary objection on a point of law that the applicants have no locus standi to challenge the grant.
4. I have examined carefully the application as well as the submissions by the parties herein. There is no doubt that by the time the deceased died the lease agreement was still subsisting. The preamble to the lease stated that it referred to the deceased as well as his “heirs, assigns and administrators”. Clearly the respondent takes full responsibility on this.
5. Does this cause become the proper forum to agitate their claim? I do not think so. The substantive reason is that the issues between the applicants and the respondent is purely contractual in nature.
The lease was to subsist for 20 years. Apparently the deceased died after the lease was executed.
6. In my view therefore the only interest due to the Applicants herein is the remainder of the lease. They cannot claim to be beneficiaries to the capital assets of the estate.
7. The proper forum to agitate their claim would be another forum not this. The succession Act is special in nature. It does not in my view anticipate the circumstances obtaining herein. If for instance they defaulted in rent payment or the lease be terminated, then the proper forum would be Rent Tribunal or any other legally provided channel but not the succession proceedings.
8. Infact, by virtue of the fact that there is an administrator to the estate, the proper recourse would be to tussle with him outside this forum.
9. The question surrounding the registration or non registration of the lease or the rent in arrears or not is not for this court to decide under the provisions of the succession Act.
10. In the premises I do doubt whether the provisions of Rule 63 (1) of the Probate Rules anticipated this kind of proceedings, otherwise it would have been clearly spelt out.
11. For the foregoing reasons I shall uphold the preliminary objection. The issue at hand is purely contractual in nature and not a matter to be litigated under the Succession Act. Whatever rights and obligation between the parties herein enshrined in the lease agreement can adequately be addressed elsewhere.
12. The preliminary objection is upheld. The application dated 19/7/2018 is dismissed and the interim orders earlier issued vacated. Costs to the Respondents.
Delivered, signed and dated at Kitale this 10th day of December, 2018.
__________________
H.K. CHEMITEI
JUDGE
10/12/18
In the presence of:
Wanyama for the Applicant
Ndarwa holding brief for Kiarie for the Petitioner
Court Assistant – Kirong
Ruling read in open court.