[2019] KEHC 10666 (KLR)
The court found that although the applicant failed to attend family meetings regarding the estate, there was no evidence that he was excluded or not notified. However, the applicant's claim regarding the suit property was upheld because he had acquired title to Kaplamai/Sirende Block 2 (Ngonyek) 225 before the...
Source-derived case information.
- Citation
- [2019] KEHC 10666 (KLR)
- Parties
- Applicant: Paulo Kipkorir Rono; Respondent: Joseph Kipkoech Rono
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 117 of 2014
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation/rectification of Grant
- Outcome
- Application partly allowed; grant rectified to exclude disputed parcel; revocation of grant denied.
- Judges
- HK Chemitei
- Legal Topics
- Revocation of Grant, Rectification of Grant, Succession Assets, Title to Land, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paulo Kipkorir Rono
Applicant
Joseph Kipkoech Rono
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation/rectification of Grant
Legal Issues
- 1 Whether the grant of probate or letters of administration should be revoked or annulled due to alleged exclusion of the applicant from succession proceedings.
- 2 Whether land parcel Kaplamai/Sirende Block 2 (Ngonyek) 225 forms part of the deceased's estate for purposes of distribution.
- 3 Whether the confirmed grant should be rectified to exclude the disputed parcel from the estate.
Ratio Decidendi
The court found that although the applicant failed to attend family meetings regarding the estate, there was no evidence that he was excluded or not notified. However, the applicant's claim regarding the suit property was upheld because he had acquired title to Kaplamai/Sirende Block 2 (Ngonyek) 225 before the deceased's death. As such, the property did not form part of the deceased's estate at the time of her death and could not be distributed under the succession proceedings. Any allegations of fraud in the acquisition of the property must be pursued in a different forum, as succession proceedings are limited to assets registered in the deceased's name at death. The court therefore...
Court Disposition
Application partly allowed; grant rectified to exclude disputed parcel; revocation of grant denied.
Orders
- The prayer to revoke the grant is rejected.
- The confirmed grant dated 29/3/2018 is rectified to remove parcel No. Kaplamai/Sirende Block 2 (Ngonyek) 225 and its subsequent distribution.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 117 OF 2014
IN THE MATTER OF THE ESTATE OF MIRIAM JERUTO MARITIM - DECEASED
PAULO KIPKORIR RONO .............OBJECTOR/APPLICANT
JOSEPH KIPKOECH RONO.....APPELLANT/RESPONDENT
R U L I N G
1) In his application dated 27/7/2018 the applicant prays that:
1) The Land Registrar Trans Nzoia be injuncted from issuing new titles in respect to land parcel No. Kaplamai/Sirende Block 2 (Ngonyek) 225 pending the determination of this application
2) The grant of probate ( or letters of administration made on 28/1/2016 and confirmed on 29/3/2018 be revoked or annulled and that the Honourable court do recall the issued and confirmed grant.
3) The title deeds issued if any be cancelled and the former title deed too revert.
2. The same is supported by the applicants affidavit sworn on 27/7/2018 together with the attached annextures. Basically he depones that this succession proceedings went on without his involvement. That the family members held deliberations in his absence. More importantly that the suit property namely Kaplamai/Sirende Block 2 (Ngonyek) 225 does not form part of the estate.
3. The Petitioner Joseph Kipkoech Rono swore a replying affidavit dated 27/9/2018 in which he denied that the applicant did not know the family meetings which deliberated on the deceased estate and that in all such meetings the applicant has always refused to attend including meeting chaired by the deceased.
4. He said that the applicant fraudulently had the land transferred to himself 10 months before the death of their mother. According to him the same was supposed to have been shared equally among the family members just like the rest of the estate.
5. The court has perused the entire proceedings herein as well as the submissions by the counsels on record. What is clear is that the parties in the cause are related by virtue of being deceased children.
6. Secondly, prior to her death and subsequently, the family held meetings as is exhibited by the minutes attached. This court is completely unable to believe that of all the deceased children and beneficiaries, the applicant failed to attend for he was not notified. On this part I find that the applicant deliberately failed to attend the meetings for whatever reasons he had. The meeting held on 1/03/2009 chaired by her mother (deceased) was attended by all the brothers except him. As stated above, no reasons was given by the applicant.
7. However as regards the suit property namely Kaplamai/Sirende Block 2 (Ngonyek) 225, I find the applicant's claim to be valid. He acquired the title on 2/12/2009 several months before her mother died. In whatever means he acquired, as at the date of the deceased death, the title had passed and thus it does not form part of her estate.
8. If there was fraud in obtaining the same as claimed by the respondents, then the same should be addressed in another forum and not in this cause. The proceedings under the Succession Act must always relate to the assets in the name of the deceased as at her death. The land was not in her name as shown by the title deed as well as the official search.
9. Consequently I shall allow the application as follows:-
1) The prayer to revoke the grant is hereby rejected or disallowed.
b) The confirmed grant dated 29/3/2018 is hereby rectified so as to remove the suit parcel No.. Kaplamai/Sirende Block 2( Ngonyek) 225 and its subsequent distribution.
c) Costs in the cause.
Delivered, signed and dated at Kitale this 22nd January 2019.
____________________
H.K. CHEMITEI
JUDGE
22/1/19
In the presence of:
Chebii for Objector
Wanyama holding brief for Mengich for the Respondent
Court Assistant – Kirong
Ruling read in open court.