[2020] KEHC 7400 (KLR)
The court found that the grant was issued and confirmed in the presence of all beneficiaries, who expressly agreed that the petitioner would hold the estate in trust. There was no evidence of impropriety, fraud, or prejudice suffered by the applicants. The court held that the applicants' change of position was in...
Source-derived case information.
- Citation
- [2020] KEHC 7400 (KLR)
- Parties
- Petitioner: JKE; Respondent: RNK & 2 Others; Applicant: VY & 4 Others
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 32 of 2012
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant and Review of Orders
- Outcome
- Application allowed in part; estate to be distributed within 45 days; all other prayers declined.
- Judges
- HK Chemitei
- Legal Topics
- Revocation of Grant, Trusteeship of Administrator, Distribution of Estate, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
JKE
Petitioner
RNK & 2 Others
Respondent
VY & 4 Others
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant and Review of Orders
Legal Issues
- 1 Whether the grant issued and confirmed to the petitioner should be revoked due to alleged mismanagement and lack of authority from all beneficiaries.
- 2 Whether the order relating to Land parcel No. KAPLAMAI/KACHIBORA should be reviewed or set aside.
- 3 Whether the petitioner acted improperly as administrator of the estate.
Ratio Decidendi
The court found that the grant was issued and confirmed in the presence of all beneficiaries, who expressly agreed that the petitioner would hold the estate in trust. There was no evidence of impropriety, fraud, or prejudice suffered by the applicants. The court held that the applicants' change of position was in bad faith, especially since they were present during the confirmation of the grant and did not raise objections at that time. The court further held that the land subject to the injunction did not form part of the deceased's estate and should be dealt with separately. The proper remedy was to proceed with the distribution of the estate, and the petitioner was ordered to apply for...
Court Disposition
Application allowed in part; estate to be distributed within 45 days; all other prayers declined.
Orders
- The petitioner is ordered to apply for distribution of the estate within 45 days from the date of the ruling.
- Application for revocation of grant and review of orders is otherwise declined.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 32 OF 2012
IN THE MATTER OF THE ESTATE OF THE LATE EEM.....DECEASED)
JKE..................................................................................................PETITIONER
VERSES
RNK & 2 OTHERS...................................................................RESPONDENTS
AND
VY & 4 OTHERS.................................................OBJECTORS/APPLICANTS
RULING
1. The Applicant V Y on his own behalf and on behalf of the rest of his siblings vide an application dated 26th June, 2019 has prayed that the grant issued on the 5th day of June, 2017 and confirmed on the 19th day of April, 2019 to the Petitioner herein be revoked; that this court be pleased to review and or set aside the order dated 11th June, 2019 in respect to Land parcel No. KAPLAMAI /KACHIBORA [particulars withheld] which belonged to the 2nd Objector.
2. The Applicant’s contents in his supporting affidavit that he and the rest of the beneficiaries did not authorise the Petitioner to act on their behalf and that as a matter of fact their two sisters were left behind. They accused the Petitioner who is their last born of mismanaging and wasting the estate.
3. The Applicant has enumerated other ills which the Petitioner has done including wasting the Estates assets left behind by the deceased. They also accuse him of not disclosing to the court that their brother E Y was suffering from some mental decease. He deponed that his wife was injuncted from utilising the land parcel number KAPLAMAI /KACHIBORA [particulars withheld] vide the ruling of this court dated 11th June, 2019.
4. The Respondent has filed a replying affidavit dated 1st October, 2019 in which he has acknowledge part of the issues raised by the Applicant.
5. The court without wasting a lot of judicial time states that there is nothing lost to the Applicants. The grant issued and confirmed on the 19th day of April, 2018 was done in their presence as per the court record. They agreed that the petitioner “do hold the same in trust”. The implication is that until they made up their minds on how they intend to distribute the estate, the petitioner shall be their trustee.
6. For them to turn around yet they were present in court on the material day smacks bad faith on their part. If their sisters were left behind, it was within their knowledge and it was their duty to notify the court.
7. All in all, this court does not see any prejudice they have suffered as there is no tangible material presented to this court indicating any impropriety on the part of the Administrator. The proper recourse for the Petitioner is to have the estate distributed so that the burden can get out of his back. The law does not preclude the Applicants from applying to be join Administrators if need be.
8. Peradventure the Petitioner is removed, who shall administer the estate? This is an issue which they have not ventured into and this court to the extent that there is no impropriety on the part of the Administrator who is actually their trustee see no reason to remove him.
9. Nonetheless in order for the court to ensure that the estate is distributed and the burden of the petitioner lifted he is hereby ordered to apply for the distribution of the estate within the next 45 daysfrom the date herein. This in my view shall sort out the entitlement of every individual and beneficiary to the estate.
10. On the issue of setting aside the injunction issued on 11th June, 2019, this court in that ruling found that the land in question did not form part of the deceased estate and it should therefore be dealt with independently. The estate of the late KL should be able to be conducted independent of this proceedings.
11. It is also noted that the Applicant herein was not a party to that particular injunction application. If the 2nd Respondent was involved, then he should file a separate application for consideration by this court.
12. In a nutshell, the application is allowed only to the extent that let the estate be distributed as advised above. This will clearly bring out the issues bedevilling the family and will most certainly ensure that each beneficiary gets his share without burdening the petitioner.
13. Being a family matter each party shall meet its own costs.
14. Orders accordingly.
Dated, signed and delivered in open court at Kitale this 10th day of March, 2020.
_______________
H. K. CHEMITEI
JUDGE
10/03/2020
In the presence of:-
Wanyonyi for the Objector
Bungei for the Petitioner
Court Assistant – Silvia
Ruling read in open court