[2010] KEHC 2741 (KLR)
The court found that the original distribution of the estate was made by consent of all beneficiaries, as confirmed by the ruling of Justice Emukule in 2008. There was no evidence of fraud or lack of consent. The applicant's attempt to re-open the matter relied on grounds previously dismissed and was an abuse of...
Source-derived case information.
- Citation
- [2010] KEHC 2741 (KLR)
- Parties
- Applicant: Stephen Kibiti Mutunga; Respondent: Jacob Riungu Mutunga; Respondent: John Muthamia; Respondent: Peter Kimathi Mutunga; Respondent: Elizabeth Gachoro
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 81 of 1980
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- application dismissed with costs
- Judges
- MM Kasango
- Legal Topics
- Succession, Revocation of Grant, Consent Orders, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stephen Kibiti Mutunga
Applicant
Jacob Riungu Mutunga
Respondent
John Muthamia
Respondent
Peter Kimathi Mutunga
Respondent
Elizabeth Gachoro
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the grant of representation should be revoked on grounds of fraud and lack of consent in the distribution of the estate.
- 2 Whether the applicant is entitled to re-open the distribution of the estate more than 21 years after the original consent order.
Ratio Decidendi
The court found that the original distribution of the estate was made by consent of all beneficiaries, as confirmed by the ruling of Justice Emukule in 2008. There was no evidence of fraud or lack of consent. The applicant's attempt to re-open the matter relied on grounds previously dismissed and was an abuse of process, especially given the extensive development and occupation of the land by the beneficiaries over more than two decades. Entertaining the application would undermine the finality of court orders and prejudice the settled interests of the beneficiaries. The application for revocation of grant was therefore dismissed as without merit.
Court Disposition
application dismissed with costs
Orders
- The application dated 12th January 2009 is dismissed.
- Costs awarded to Jacob Riungu Mutunga to be paid by Stephen Kibiti Mutunga.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Succession Cause 81 of 1980
IN THE MATTER OF THE ESTATE OF SIMON MUTUNGA (DECEASED)
STEPHEN KIBITI ……………………………… APPLICANT
VERSUS JACOB RIUNGU MUTUNGA ………….…..1ST RESPONDENT
JOHN MUTHAMIA ………………………… 2ND RESPONDENT
PETER KIMATHI MUTUNGA ……….……. 3RD RESPONDENT
ELIZABETH GACHORO ……………………4TH RESPONDENT
JUDGMENT
This succession was concluded in February 1981 when the court distributed parcel number Nthimbiri/Igoki/106 amongst the deceased beneficiaries.Stephen Kibiti Mutunga one of the beneficiaries who got a share of that property filed a chamber summons dated 28th February 2003 some 21 years later after distribution.He sought to review that distribution.Justice Emukule by his ruling dated 8th December 2008 made findings which to date have not been appealed against.I can do no better than reproduce part of that ruling as follows:-
“As already stated, all the beneficiaries were present, it was a consent order.…………………. Where however parties or the beneficiaries agree or consent to the distribution of the estate, then the court will order distribution of the estate in terms of the agreement orconsent of the beneficiaries.That is what happened on 4th February 1981, and it is both pertinent andcontentious of the court for the applicant to insinuatethat the court was misled is baseless and the application for those reasons I would dismiss the applicant’s summons of 28th February 2003. ……………. Finally, over a period of 22 or more years each of the beneficiaries has developed his portion of the estate, and has procured or ought to have procured individual title, and if he has not done so, should do so withoutundue delay, it would be improper and prejudicial to thedistribution with a new distribution (sic).”
That application for review on being dismissed Stephen has again approached this court with a summons dated 4th January 2009 seeking the revocation of grant on the basis that it was obtained by fraud and by making false statements.Stephen relied on the ground he had relied in the dismissed application.That is, he relied on a ground that the petitioner petitioned for grant secretly and on the ground that there was no consent on distribution.The first respondent in the replying affidavit annexed photographs of each beneficiary’s homestead.That is those who obtained land in this succession.Looking at those photographs, some of the houses shown are permanent buildings.It is clear from those photographs that each beneficiary has extensively developed their portions of land.That is not strange considering that the parties have been in occupation to their respective portions for more than 21 years.In considering the application by Stephen, it becomes clear that there ought to be limits placed on the right of a party seeking to re-open certain matters.This is certainly one of such matters.Additionally, to entertain the application by Stephen for revocation would be to consider the same issues that are considered by Justice Emukule by his ruling of 8th December 2008. The application dated 12th January 2009 is without merit and is dismissed with costs being awarded to Jacob Riungu Mutunga to be paid by Stephen Kibiti Mutunga.
Dated and delivered at Meru this 7th day of May 2010.
MARY KASANGO
JUDGE