[2011] KEHC 2107 (KLR)
The court found that the plaintiff's grievance—being excluded from the succession proceedings and alleging fraud in the defendant's acquisition of the land—falls squarely within the remedy provided by Section 76 of the Law of Succession Act, which allows for revocation or annulment of a grant obtained by fraud or...
Source-derived case information.
- Citation
- [2011] KEHC 2107 (KLR)
- Parties
- Plaintiff: Alice Miiru Kobuthi (suing as the Administrator of the Estate of Kobuthi Maingi, Deceased); Defendant: Francis Gikundi Marete
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 68 of 2011
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Prohibitory Order
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Succession Disputes, Fraudulent Registration, Land Ownership, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Miiru Kobuthi (suing as the Administrator of the Estate of Kobuthi Maingi, Deceased)
Plaintiff
Francis Gikundi Marete
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Prohibitory Order
Legal Issues
- 1 Whether the plaintiff is entitled to a prohibitory order against the title to the suit land pending determination of the suit.
- 2 Whether the defendant's registration as proprietor of the suit land was fraudulent or improper.
- 3 Whether the plaintiff should have pursued revocation of grant under succession law instead of the present suit.
Ratio Decidendi
The court found that the plaintiff's grievance—being excluded from the succession proceedings and alleging fraud in the defendant's acquisition of the land—falls squarely within the remedy provided by Section 76 of the Law of Succession Act, which allows for revocation or annulment of a grant obtained by fraud or concealment. Since the law provides a specific mechanism for challenging the grant (i.e., an application for revocation in the succession cause), the present suit and the interlocutory application for a prohibitory order are not legally sustainable. The plaintiff should have pursued her remedy within the succession proceedings rather than through a separate civil suit....
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application for a prohibitory order is dismissed.
- The plaintiff shall bear the costs of the application.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL SUIT NO. 68 OF 2011
ALICE MIIRU KOBUTHISuing as the Administrator of the Estate of
KOBUTHI MAINGI (Deceased) .……..........….PLAINTIFF/APPLICANT
VERSUS
FRANCIS GIKUNDI MARETE……………..………....……DEFENDANT
R U L I N G
The Plaintiff is the legal administrator of the estate of the deceased Kobuthi Maingi who was her husband. She is claiming that the deceased had bought the suit land, that is GATURI/NEBURE/708, from its then registered owner Mungania Kagundu alias Kiura Kagundu following agreement dated 20th April 1966. From 1967, the deceased and his family begun living on the land. When Kagundu died, the Defendant filed Runyenjes SRM Succession Cause No. 92 of 2010, claiming to be the step son, and inherited the suit land which is now registered in his name. The Plaintiff alleges that the Defendant was not the step son of Kagundu and neither did he make her aware of the succession case and yet she was living on this land. She alleges fraud against him and in this suit seeks a declaration that the registration of the suit land in the name of the Defendant be found to be null and void. She seeks that the registration be cancelled and that she be registered as the owner.
In this application, the Plaintiff seeks under Section 3A of the Civil Procedure Act a prohibitory order against the title to the suit land until this case is heard and finalized. The Defendant opposed the application saying that he inherited the suit land from Kagundu who was his uncle; that the Plaintiff was at liberty to file application to revoke the grant which she had not done; and that, the purported sale agreement was null and void for lack of the consent of the Land Control Board.
The Plaintiff is basically aggrieved by the fact that she was not made aware of the succession cause to be able to protect her interest in the suit land, and further claims that the Defendant was not the step son of the late Kagundu and therefore ought not to have inherited him. Such a complaint brings her within the provisions of Section 76 of the Law of Succession Act (Cap 160) under which any grant, whether confirmed or not, may at any time be revoked or annulled if it was obtained fraudulently by the making of false statement or by the concealment of any material evidence. It would, consequently, appear that the suit is incompetent as the law provides an appropriate mechanism by which the Plaintiff can pursue her claim to the land against the Defendant. In the premises, the application cannot be granted as it is legally not tenable. It is therefore dismissed with costs.
DATED, DELIVERED AND SIGNED AT EMBU THIS 18TH DAY OF JULY 2011.
A.O. MUCHELULE
JUDGE