[2023] KEHC 27043 (KLR)
The court found that while there is no denial that Charles Mbaabu Karicha is a purchaser and not a beneficiary, he is not a party to the current application. Making a determination that affects his interests without affording him an opportunity to be heard would violate the principles of natural justice. The court...
Source-derived case information.
- Citation
- [2023] KEHC 27043 (KLR)
- Parties
- Petitioner: Joseph Mwambi M’Ikiamba; Applicant: Henry M’Mithea M’Ikiamba
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 122 of 2004
- Procedural Posture
- Succession Cause / Ruling on Summons for Rectification of Certificate of Confirmation of Grant
- Outcome
- Summons for rectification to be served on Charles Mbaabu Karicha; matter to proceed by viva voce evidence; directions for further mention and compliance.
- Judges
- TW Cherere
- Legal Topics
- Succession, Rectification of Grant, Beneficiary Status, Purchaser in Succession, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwambi M’Ikiamba
Petitioner
Henry M’Mithea M’Ikiamba
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Rectification of Certificate of Confirmation of Grant
Legal Issues
- 1 Whether the inclusion of Charles Mbaabu Karicha as a beneficiary in the certificate of confirmation of grant was erroneous.
- 2 Whether the certificate of confirmation of grant should be rectified or revoked on the basis that Charles Mbaabu Karicha is a purchaser and not a beneficiary.
- 3 Whether it is just to make orders affecting Charles Mbaabu Karicha without affording him a hearing.
Ratio Decidendi
The court found that while there is no denial that Charles Mbaabu Karicha is a purchaser and not a beneficiary, he is not a party to the current application. Making a determination that affects his interests without affording him an opportunity to be heard would violate the principles of natural justice. The court therefore ordered that the summons for rectification be served on Charles Mbaabu Karicha and that the matter proceed by way of viva voce evidence, ensuring all affected parties are heard before any substantive orders are made regarding the rectification or revocation of the grant.
Court Disposition
Summons for rectification to be served on Charles Mbaabu Karicha; matter to proceed by viva voce evidence; directions for further mention and compliance.
Orders
- Summons dated 25th September, 2023 shall be served on Charles Mbaabu Karicha.
- The summons dated 25th September, 2023 shall be determined by way of viva voce evidence.
Full Case Text
Judgment text and source record
22 paragraphs
In re Estate of M’Ikiamba Karitho (Deceased) (Succession Cause 122 of 2004) [2023] KEHC 27043 (KLR) (20 December 2023) (Ruling)
Neutral citation: [2023] KEHC 27043 (KLR)
Republic of Kenya
In the High Court at Meru
Succession Cause 122 of 2004
TW Cherere, J
December 20, 2023
Between
Joseph Mwambi M’Ikiamba
Petitioner
and
Henry M’Mithea M’Ikiamba
Applicant
Ruling
1. By summons for revocation dated 01st August, 2022, Henry M’Mithea M’Ikiamba (Applicant) sought orders of revocation the certificate of confirmation of grant rectified on 01st November, 2021 on grounds among others that a stranger, one Charles Mbaabu Karicha was included in the list of beneficiaries but failed to prove that allegation.
2. The summons dated 25th September, 2023 by the same Henry M’Mithea M’Ikiamba (Applicant) seeks orders of rectification of the certificate of confirmation of grant on similar grounds that a stranger, one Charles Mbaabu Karicha, who bought land from the Respondent.
3. By his replying affidavit sworn on 14th November, 2023, Respondent reiterated that it was the Applicant that introduced Charles Mbaabu Karicha into this cause and cannot therefore be heard to claim that he is a stranger.
4. By his further affidavit sworn on 07th December, 2023, Applicant reiterates that the inclusion of Charles Mbaabu Karicha was erroneous as he is not a beneficiary but a purchaser.
5. I have considered the summons in the light of the affidavits on record. I notice that the Respondent does not deny that Charles Mbaabu Karicha is not a beneficiary but that he purchased land from him which is my considered view is a matter that this court cannot casually dismiss considering that land is an emotive issue.
6. I notice that the said Charles Mbaabu Karicha is not a party to this application and it would therefore not be in the interest of justice to condemn him unheard.
7. Consequently, it is hereby ordered as follows:1. Summons dated 25th September, 2023 shall be served on Charles Mbaabu Karicha2. The summons dated 25th September, 2023 shall be determined by way of viva voce evidence3. Parties are directed to file and serve respective responses/affidavits/witness statements4. Mention on 04th March, 2024 to confirm compliance and for directions as to disposal of the application
DATED AT MERU THIS 20TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Kinoti/MuneneFor Applicant - Ms. Asuma for Mutembei & Kimathi AdvocatesFor Respondent - Mr. Ondieki for J.O.Ondieki & Co. Advocates