[2017] KEHC 260 (KLR)
The court held that the pending summons for revocation of grant must be either formally withdrawn or prosecuted before the application for removal of caution on L.R. No. Evurore/Kathera/2553 can be heard. The court found that proceeding with the removal of caution while the revocation application is unresolved would...
Source-derived case information.
- Citation
- [2017] KEHC 260 (KLR)
- Parties
- Applicant: Mati Ngari; Respondent: Spola Wangari; Interested Party: Justin Njeru Ngari
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 47 of 2016
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Applications Regarding Revocation of Grant and Removal of Caution
- Outcome
- Interlocutory directions issued; no final determination on revocation or removal of caution.
- Legal Topics
- Succession, Revocation of Grant, Fraudulent Obtainment of Grant, Removal of Caution, Land Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mati Ngari
Applicant
Spola Wangari
Respondent
Justin Njeru Ngari
Interested Party
Procedural Posture
Succession Cause / Ruling on Interlocutory Applications Regarding Revocation of Grant and Removal of Caution
Legal Issues
- 1 Whether the summons for revocation of grant should be withdrawn or prosecuted before the application for removal of caution is heard.
- 2 Whether the application for removal of caution on L.R. No. Evurore/Kathera/2553 can proceed before determination of the revocation summons.
- 3 Whether the grant was obtained fraudulently by making a false statement.
Ratio Decidendi
The court held that the pending summons for revocation of grant must be either formally withdrawn or prosecuted before the application for removal of caution on L.R. No. Evurore/Kathera/2553 can be heard. The court found that proceeding with the removal of caution while the revocation application is unresolved would be procedurally improper and could prejudice the parties' rights. The applicant is directed to take formal steps within 30 days to either withdraw the revocation summons or seek directions for its prosecution. Only after this period, and if no action is taken by the respondent, may the application for removal of caution be fixed for hearing. This approach ensures orderly...
Court Disposition
Interlocutory directions issued; no final determination on revocation or removal of caution.
Orders
- The applicant is directed to either formally withdraw the summons for revocation or move the court for directions to prosecute the summons within 30 days.
- The application dated 8/05/2017 for removal of caution may be fixed for hearing after expiry of 30 days if the respondent has not taken steps to prosecute her summons for revocation.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 47 OF 2016
In the matter of the Estate of NGARI GIKINGI (Deceased)
MATI NGARI………................................ APPLICANT/RESPONDENT
V E R S U S
SPOLA WANGARI JUSTIN NJERU..............................RESPONDENT
JUSTIN NJERU NGARI......................................INTERESTED PARTY
R U L I N G
1. The grant in this case was confirmed by this court on 24/01/2017. The applicant herein filed summons for revocation dated 12/07/2017 seeking for revocation of grant based on the grounds that the grant was obtained fraudulently by making a false statement. This application has not been prosecuted or withdrawn.
2. The petitioner/applicant has now applied for removal of caution from L.R. No. Evurore/Kathera/2553 which the respondent is claiming in whole in her application to revoke the grant claiming that she bought it from the deceased during his lifetime.
3. The husband of the applicant has joined in this cause as an interested party claiming to have bought the same land from the deceased during his lifetime.
4. During the date of hearing, of the petitioners application dated 8/5/2017 the respondent did not attend court. However, on record was a document purportedly signed by the respondent stating that she is not opposed to the distribution of the estate. The signature on the said document and that on the summons for revocation look different raising doubt on the authenticity of the document.
5. Should the applicant wish to withdraw the summons for revocation, she requires to do so formally to facilitate execution of the grant as it is. Should she wish to prosecute it, directions ought to be taken and the application heard and determined before the issue of removal of caution is dealt with. The administrator has already filed an application dated 8/05/2017 seeking of removal of caution from L.R. Evurore/Kathera/2553.
6. I hereby direct that the applicant either formally withdraws the summons for revocation or moves the court for the directions with a view of prosecuting the summons within 30 days.
7. The application dated 8/05/2017 for removal of caution may be fixed for hearing after the expiry of 30 days in the event that the respondent Spola Wangari has not taken any steps to prosecute her summons for revocation.
8. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OF NOVEMBER, 2017.
F. MUCHEMI
J U D G E
In the presence of:-
Applicant
Respondents