[2024] KEHC 3353 (KLR)
The court determined that the affidavit evidence and annexures presented were insufficient to resolve the central issues regarding the registration and transfer of the deceased's share in land parcel 1870/503. The court could not ascertain from the documents how the property was registered or how the transfer was...
Source-derived case information.
- Citation
- [2024] KEHC 3353 (KLR)
- Parties
- Applicant: Paritaben Jitendera Dedhia; Respondent: Arvindbhai Harmandbhai Patel; Interested Party: Amarjit Chetan Putra
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 3378 of 2007
- Procedural Posture
- Succession Cause / Directions
- Outcome
- Matter to proceed by way of viva voce evidence; interim orders extended.
- Judges
- HK Chemitei
- Legal Topics
- Revocation of Grant, Intermeddling With Estate, Tenancy in Common, Transfer of Land, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paritaben Jitendera Dedhia
Applicant
Arvindbhai Harmandbhai Patel
Respondent
Amarjit Chetan Putra
Interested Party
Procedural Posture
Succession Cause / Directions
Legal Issues
- 1 Whether the grant issued to the 1st Respondent should be revoked due to alleged unlawful transfer of the deceased's share in land parcel 1870/503.
- 2 Whether the transfer of the deceased's ½ share in the property to the 1st Respondent and subsequently to the Interested Party was lawful without a confirmed grant.
- 3 Whether the matter should proceed by way of viva voce evidence due to insufficiency of affidavit evidence.
Ratio Decidendi
The court determined that the affidavit evidence and annexures presented were insufficient to resolve the central issues regarding the registration and transfer of the deceased's share in land parcel 1870/503. The court could not ascertain from the documents how the property was registered or how the transfer was effected to the 1st Respondent and subsequently to the Interested Party. Given the lack of clarity and the need for original or more legible documentary evidence, the court held that it would be unjust to determine the substantive issues of conveyancing or transmission without oral testimony and proper documentation. Accordingly, the court directed that the matter proceed by way...
Court Disposition
Matter to proceed by way of viva voce evidence; interim orders extended.
Orders
- The matter is set down for hearing by viva voce evidence.
- Orders barring any dealings on land parcel number 1870/503 are extended until determination of the matter.
Full Case Text
Judgment text and source record
31 paragraphs
In re Estate of the Late Manjulaben Arvindbhai Patel (Deceased) (Succession Cause 3378 of 2007) [2024] KEHC 3353 (KLR) (Family) (21 March 2024) (Directions)
Neutral citation: [2024] KEHC 3353 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 3378 of 2007
HK Chemitei, J
March 21, 2024
IN THE MATTER OF THE ESTATE OF THE LATE MANJULABEN ARVINDBHAI PATEL(DECEASED)
Between
Paritaben Jitendera Dedhia
Applicant
and
Arvindbhai Harmandbhai Patel & 3 others
Respondent
and
Amarjit Chetan Putra & another
Interested Party
Directions
1. The Applicant filed her summons for revocation of grant application amended and dated 13th November 2019. In the said application she is seeking several prayers including revocation of the grant issued to the 1st Respondent as well as cancellation of transfer of land parcel number 1870/503.
2. The gist of the application is that the 1st Respondent illegally and unlawfully transferred the ½ share in the said parcel which belonged to the deceased. She said that the said transfer ought to have been done after the court had issued a valid confirmed grant.
3. In this case the Applicant contents that the Respondent did not care to obtain a grant and simply intermeddle with the estate.
4. The Respondent on his part denied the same arguing that since they were tenants in common with the deceased the law permitted him to do so. That the sale to the Interested party was equally lawful.
5. The court has perused the application, the rival pleadings as well as the submissions by the parties. The court has equally perused the legal arguments and various cited authorities and statutes.
6. This court is of the considered view that the issues herein are not clear and that the affidavit evidence alone is not sufficient. For instance, the court is unable to decipher from the annexures how the land was registered in the names of the deceased and the 1st Respondent.
7. The court is unable also to ascertain how the transfer was effected to the 1st Respondent and subsequently to the Interested party. The documentary evidence ought to be produced it their original form or at least more legible.
8. The court will be doing disservice and for that matter injustice if it proceeds to determine the main issue of conveyancing or transmission without the support and input of the parties.
9. In the premises, and this being the only issue as there is no issue of who is the beneficiaries of the estate this matter ought to proceed by way of viva voce evidence. Let the parties fully testify and produce proper documentations in support of their cases.
10. There will be no prejudice suffered by the parties as the main issue of tenancy between the deceased and the 1st Respondent shall be decided. In any case the purchase by the Interested party has not been disputed.
11. Consequently, this matter is be set down for hearing, the orders barring any dealings on land parcel number 1870/503 are hereby extended till the matter is determined.
DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 21ST DAY OF MARCH 2024. H K CHEMITEIJUDGE