[2019] KEHC 1296 (KLR)
The court determined that the applicants are entitled to be included in the grant only to the extent of the 1/4 acre admitted by the respondents, as evidenced by an acknowledgment of payment by the deceased. The claim for the additional 1/4 acre is contested and unsupported by documentation, and the court lacks...
Source-derived case information.
- Citation
- [2019] KEHC 1296 (KLR)
- Parties
- Respondent: Esther Kurgat Yego; Respondent: Andipah Kipkorir Ngeny; Applicant: Elkanah Osiru Rabwogi; Applicant: Jane Akello Aluodo
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 254 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application to Amend Grant
- Outcome
- Application allowed in part; grant to be amended to include admitted 1/4 acre; costs to each party.
- Judges
- HK Chemitei
- Legal Topics
- Succession of Estates, Confirmation of Grant, Purchaser Claims in Estate, Land Sale Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Kurgat Yego
Respondent
Andipah Kipkorir Ngeny
Respondent
Elkanah Osiru Rabwogi
Applicant
Jane Akello Aluodo
Applicant
Procedural Posture
Succession Cause / Ruling on Application to Amend Grant
Legal Issues
- 1 Whether the applicants are entitled to be included in the grant as purchasers of a portion of the deceased's land.
- 2 Whether the grant should be amended to reflect the applicants' claimed interest of 1/2 acre or only the admitted 1/4 acre.
- 3 Whether the High Court has jurisdiction to determine contested land sale claims within a succession cause.
Ratio Decidendi
The court determined that the applicants are entitled to be included in the grant only to the extent of the 1/4 acre admitted by the respondents, as evidenced by an acknowledgment of payment by the deceased. The claim for the additional 1/4 acre is contested and unsupported by documentation, and the court lacks jurisdiction to resolve such contractual land disputes within a succession cause. The proper forum for adjudicating the disputed sale is the Environment and Land Court. Accordingly, the grant will be amended to include the admitted 1/4 acre, and the applicants must pursue any further claims in the appropriate forum.
Court Disposition
Application allowed in part; grant to be amended to include admitted 1/4 acre; costs to each party.
Orders
- The grant of representation shall be amended to include the applicants' interest in the admitted 1/4 acre of land parcel KITALE MUNICIPALITY BLOCK 15/KOITOGOS/2266.
- The claim for the additional 1/4 acre is dismissed for want of jurisdiction; parties may pursue the matter in the Environment and Land Court.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 254 OF 2011
IN THE MATTER OF THE ESTATE OF THE LATE JAIRO KIBIEGO KIPKURGAT - (DECEASED)
ESTHER KURGAT YEGO……………1ST PETITIONER /RESPONDENT
ANDIPAH KIPKORIR NGENY………..2ND PETITIONER/RESPONDENT
VERSES
ELKANAH OSIRU RABWOGI…..1ST APPLICANT/INTERESTED PARTY
JANE AKELLO ALUODO…….…2ND APPLICANT/INTERESTED PARTY
RULING
1. The grant of Letters of Administration over the estate of the deceased herein was confirmed on the 9th July, 2015 and a further amendment to the grant was done on the 26th October, 2016. The deceased died on the 5th October 2010. In the amended grant the names of the Applicants were left out and or the share due to them was not included.
2. They were aggrieved by the action of the Respondents, the administrators of the said estate and have filed the application dated 24th November, 2016 in which they seek that their names be included in the said grant. According to them they purchased a total of half an acre from the deceased out of land parcel number KITALE MUNICIPALITY BLOCK 15/KOITOGOS /2266 which was registered in his name.
3. As per the supporting affidavit of the 2nd Applicant they first purchased ¼ of an acre and later added another ¼ an acre making a total of ½ an acre. They claimed that they have taken possession of the same and fully developed and thus they merit to be included in the grant.
4. The 2nd Respondent vide a replying affidavit dated 5th December, 2016 has opposed the said application arguing that they are only aware of ¼ of an acre the deceased sold to the Applicants and not a total of ½ an acre. He said that they are willing to have the admitted ¼ acre included in the grant.
5. In his reply he has attached an acknowledgment dated 20th March, 2006 by the deceased that he had received the sum of kshs. 250,000 being the purchase consideration for ¼ of an acre.
6. This court has perused the rival submissions filed by the parties herein. In the assessment of this court, it is clear that the Respondents admit that the deceased sold ¼ of an acre to the Applicants. To that extent the grant ought to be amended to reflect that position.
7. The next ¼ is problematic and contested. There is no document to support the same and even if it was and there was contest over it, I don’t think that this would be the proper court to decide. This court is limited to the extent that it has jurisdiction over deceased estate but not strictly speaking a situation over contracts of sale as is the case herein.
8. The court finds that the proper court for the parties to litigate and offer their evidence is the Environment and Land court. This court as it stands cannot adjudicate over the question of whether the deceased sold the ¼ of an acre out of the suit land or not. This needs adduction of evidence under the relevant land laws.
9. For this reason, I shall allow the Application only to the extent that the grant be amended to include the admitted ¼ of an acre. The question of the other ¼ of an acre ought to be litigated elsewhere but not in this cause.
10. Each party shall bear their respective costs,
Dated, signed and delivered in open court at Kitale this 18th day of December, 2019.
________________
H. K. CHEMITEI
JUDGE
18/12/19
In the presence of:-
Arunga for Wafula for Applicant
No appearance for respondent
Court Assistant – Silvia
Ruling read in open court.