[2025] KEHC 2588 (KLR)
The court held that the filing of two similar applications for revocation of grant by the same applicants, albeit through different advocates, constitutes an abuse of court process. The proper course would have been for the new advocates to take over the existing application or withdraw and replace it if necessary....
Source-derived case information.
- Citation
- [2025] KEHC 2588 (KLR)
- Parties
- Applicant: Merciliana Nekesa Otogo; Applicant: Agnes Abukala Otogo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 102 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- Application for revocation of grant not determined; directions issued for viva voce hearing and service on all beneficiaries.
- Judges
- WM Musyoka
- Legal Topics
- Revocation of Grant, Abuse of Court Process, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Merciliana Nekesa Otogo
Applicant
Agnes Abukala Otogo
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the filing of two similar applications for revocation of grant by the same applicants constitutes an abuse of court process.
- 2 Whether the application for revocation of grant can be determined without notifying all beneficiaries named in the confirmation orders.
- 3 Whether there is sufficient evidence of transmission of the estate property as per the confirmation orders.
Ratio Decidendi
The court held that the filing of two similar applications for revocation of grant by the same applicants, albeit through different advocates, constitutes an abuse of court process. The proper course would have been for the new advocates to take over the existing application or withdraw and replace it if necessary. Furthermore, the court found that there was insufficient evidence to establish that the property allegedly transmitted was the same as that confirmed in the grant, as the green card attached related to a different parcel. The court emphasized that it would be prejudicial to the beneficiaries named in the confirmation orders to determine the application without their...
Court Disposition
Application for revocation of grant not determined; directions issued for viva voce hearing and service on all beneficiaries.
Orders
- Matter to be mentioned on 20th March 2025 for allocation of viva voce hearing date.
- Applicants granted 14 days to file a supplementary affidavit addressing issues raised by the court.
Full Case Text
Judgment text and source record
14 paragraphs
In re Estate of Otogo Oriama (Deceased) (Succession Cause 102 of 2008) [2025] KEHC 2588 (KLR) (14 March 2025) (Ruling)
Neutral citation: [2025] KEHC 2588 (KLR)
Republic of Kenya
In the High Court at Busia
Succession Cause 102 of 2008
WM Musyoka, J
March 14, 2025
IN THE MATTER OF THE ESTATE OF OTOGO ORIAMA (DECEASED)
Ruling
1. The application, dated 15th April 2024, is for revocation of grant. It is at the instance of Merciliana Nekesa Otogo and Agnes Abukala Otogo. I was informed, on 22nd January 2025, when the application came up for hearing, that it had been served, and was unopposed. The record reflects that another summons for revocation of grant is still pending, dated 1st July 2021, which had also been filed by the same Merciliana Nekesa Otogo and Agnes Abukala Otogo.
2. It would be abuse of court process for these individuals to file 2 similar applications. There is no clear reason why the second application was filed despite the pendency of the earlier application. The only real difference between the 2 is that they were filed by different firms of Advocates. If the applicants fell out with their earlier Advocates, then the latter Advocates ought to have simply taken over the initial application and prosecuted it, or, if they found it incurably deficient, withdrawn it and file the latter one.
3. Be that as it may. These are proceedings for revocation of a grant. That grant was confirmed some 13 years ago, and I have no idea as to whether transmission of the estate has been done, in accordance with the said confirmation orders, of 2010. The property the subject of the confirmation orders was South Teso/Amukura/287. There is no evidence of transmission of that property. What has been attached, as evidence of transmission, is a green card for South Teso/Chakol/287. I have nothing to show that South Teso/Amukura/287 and South Teso/Chakol/287 are the same property.
4. In a scenario of this kind, it would be prejudicial, to the individuals to whom the confirmation orders favoured, for the court to determine the matter purely on affidavits, without all the beneficiaries, named in the confirmation orders, being notified of the proceedings. The application must be disposed of vide viva voce evidence. This matter shall be mentioned, on 20th March 2025, for allocation of a date, for viva voce hearing. The applicants have leave, of 14 days, to file a supplementary affidavit, to address the issues raised above. The application, dated 15th April 2024, shall be served on all the individuals named in the certificate of confirmation of grant, dated 30th November 2020, and on Ipapu P. Jackah & Company, Advocates. It is so ordered.
DELIVERED VIA EMAIL, DATED AND SIGNED, AT BUSIA, THIS 14TH DAY OF MARCH 2025. W. MUSYOKAJUDGEArthur Etyang, Court Assistant.AdvocatesMr. Makokha, instructed by JP Makokha & Company, Advocates for the applicants.