[2021] KEHC 4504 (KLR)
The court declined to determine the application for revocation of grant because the central issue—ownership of East Wanga/Malaha/47—is the subject of ongoing criminal proceedings. The court held that it would be inappropriate and premature to resolve the succession dispute or revoke the grant while the criminal case...
Source-derived case information.
- Citation
- [2021] KEHC 4504 (KLR)
- Parties
- Applicant: Virginia Makokha Barasa; Applicant: Julius Wawire Makokha; Respondent: Administratrix (unnamed)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 344 of 2010
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- Application held in abeyance pending outcome of criminal proceedings.
- Judges
- DN Musyoka
- Legal Topics
- Revocation of Grant, Confirmation of Grant, Estate Administration, Ownership of Estate Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Virginia Makokha Barasa
Applicant
Julius Wawire Makokha
Applicant
Administratrix (unnamed)
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the certificate of confirmation of grant and the grant itself should be revoked due to alleged misrepresentation of estate assets.
- 2 Whether East Wanga/Malaha/47 formed part of the deceased's estate or belonged to the son prior to the deceased's death.
- 3 Whether the court should determine ownership of East Wanga/Malaha/47 while criminal proceedings regarding the property are pending.
Ratio Decidendi
The court declined to determine the application for revocation of grant because the central issue—ownership of East Wanga/Malaha/47—is the subject of ongoing criminal proceedings. The court held that it would be inappropriate and premature to resolve the succession dispute or revoke the grant while the criminal case regarding the alleged fraudulent acquisition of the property is pending. The application is therefore held in abeyance until the criminal matter is concluded, after which the parties may move the court as appropriate.
Court Disposition
Application held in abeyance pending outcome of criminal proceedings.
Orders
- The application dated 26th October 2020 is held in abeyance until after the criminal matter is determined.
- The parties shall move the court appropriately once the criminal proceedings are concluded.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION CAUSE NO. 344 OF 2010
IN THE MATTER OF THE ESTATE OF MAKOKHA ELIMA MAFWABI (DECEASED)
RULING
1. The application for determination ids the summons for revocation of grant dated 26th October 2020. It seeks review of the orders dated 29th March 2017, revocation of the certificate of confirmation of grant and of the grant itself, and appointment of the applicants, Virginia Makokha Barasa and Julius Wawire Makokha, as administrators, who are widow and son of the deceased, respectively.
2. The principal complaint appears to be with the confirmation orders. The son avers that one of the assets distributed in that confirmation process did not belong to the estate, but to him. That is to say East Wanga/Malaha/47. He says it was registered in his name on 21st June 1999, prior to the demise of the deceased on 5th October 2003. He complains that he was not involved in the process of obtaining the grant and of confirming it. He accuses the administratrix of misleading the court into getting it to distribute an asset that did not belong to the estate. He has attached a green card for East Wanga/Malaha/47, which shows that the property was transferred to his name on 21st June 1999 as a gift.
3. The administratrix responded to the application, and dwelt at length with the process she went through to obtain the grant and to involve everyone in the process. On East Wanga/Malaha/47, she avers that the title had been obtained fraudulently, and that there are pending criminal proceedings in a Mumias court in Mumias SPMCCRC No. 1139 of 2019, where the son stood charged with offences relating to how he obtained the registration. A copy of the charge sheet has not been displayed, and so I cannot tell the nature of the charges from the typed proceedings. The case is ongoing, and the lands officers are yet to testify.
4. The application is principally hinged on the ownership of East Wanga/Malaha/47. That issue is before the criminal court in Mumias. I cannot, therefore, venture to pronounce one way or the other, whether the son is the rightful proprietor of the subject property. Determination of that issue should await the outcome of the criminal proceedings. The entire application is built around that issue, and it would be unhelpful to attempt to resolve the other issues before the criminal proceedings are concluded.
5. The application dated 26th October 2020, shall, accordingly, be held in abeyance until after the criminal matter is determined. The parties shall move the court appropriately once that happens. It is so ordered.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS ……………6th ……………..…....…….DAY OF ………….……AUGUST……..…….2021
W. MUSYOKA
JUDGE