[2010] KEHC 3250 (KLR)
The court found that the applicant's application for revocation or annulment of the grant was procedurally improper, as it was brought by way of a miscellaneous application rather than within the succession cause in which the grant was issued, contrary to Rule 44(1) of the Probate and Administration Rules....
Source-derived case information.
- Citation
- [2010] KEHC 3250 (KLR)
- Parties
- Applicant: Stephen Karugo Njagi; Respondent: Jane Wanjiku Gitau
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 6 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revocation or Annulment of Grant
- Outcome
- application dismissed with costs to the respondent
- Judges
- SP Ouko
- Legal Topics
- Revocation of Grant, Probate and Administration, Beneficiary Entitlement, Land Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Karugo Njagi
Applicant
Jane Wanjiku Gitau
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revocation or Annulment of Grant
Legal Issues
- 1 Whether the application for revocation or annulment of grant is properly before the court as a miscellaneous application.
- 2 Whether the applicant has established sufficient grounds for revocation or annulment of the grant under the Probate and Administration Rules.
- 3 Whether the applicant is a beneficiary entitled to a share of the deceased's estate.
Ratio Decidendi
The court found that the applicant's application for revocation or annulment of the grant was procedurally improper, as it was brought by way of a miscellaneous application rather than within the succession cause in which the grant was issued, contrary to Rule 44(1) of the Probate and Administration Rules. Furthermore, the applicant failed to provide any written evidence or particulars of the alleged land transaction with the deceased, which was the basis of his claim to be a beneficiary. As a result, the applicant did not satisfy the conditions precedent for the annulment or revocation of the grant. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for revocation or annulment of the grant is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Miscellaneous Civil Application 6 of 2009
IN THE MATTER OF THE ESTATE OF MIRIAM NJERI GITAU (DECEASED)
STEPHEN KARUGO NJAGI……..………...……..APPLICANT
VERSUS
JANE WANJIKU GITAU…………...…………..RESPONDENT
RULING
The applicant has filed this miscellaneous application for revocation or annulment of the grant issued and confirmed to the respondent on 6th August, 2008.
The application is made on the grounds that the respondent obtained the said grant by concealment of the fact that the applicant is a beneficiary of the deceased person’s estate hence entitled to a share of the same and further that the applicant is apprehensive that the respondent may deal adversely with the estate thereby affecting the applicant’s interest.
The respondent in his reply has averred that the application is fatally defective, misconceived, bad in law and amounts to an abuse of the process of the court.
That the grounds for nullification and/or revocation of a grant have not been satisfied; that the applicant is not entitled to the estate of the deceased as he is not a beneficiary.
H.C.SUCC.C.NO.6 OF 2009
I have considered the application and the foregoing submissions as well as authorities cited by the respondent’s counsel. First I need to point out that an application to annul or revoke a grant can only be brought in the succession cause in which the grant was issued and not by miscellaneous application. See Rule 44 (1) of the Probate and Administration Rules.
Secondly the applicant’s claim to the estate is premised on the fact that before the death of the deceased, he had purchased 2½ acres of a parcel of land from the deceased. That being a land transaction he ought to have annexed to his application some form of written evidence of such transaction. This he has not done. The applicant has similarly failed to furnish the particulars of the parcel of land he purchased.
For these reasons, I come to the conclusion that the applicant has not satisfied the conditions precedent for the annulment or revocation of the grant. His application is, in the result dismissed with costs to the respondent.
Dated, Signed and Delivered at Nakuru this 22nd day of January, 2010.
W. OUKO
JUDGE