[2019] KEHC 3143 (KLR)
The court determined that the issues raised by the objectors, particularly regarding their alleged exclusion from the succession process and the alleged forgery of their signatures, are serious and cannot be resolved on the basis of affidavit evidence alone. The court held that these matters require viva voce (oral)...
Source-derived case information.
- Citation
- [2019] KEHC 3143 (KLR)
- Parties
- Applicant: Duncan K. Ndayala; Applicant: George Ndayala; Applicant: Joyce Aseyo Kihamba; Respondent: Pamela Vugutsa Mwigai and 4 others; Interested Party: Kennedy Susu Ilayioga and 2 others
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 105 of 2000
- Procedural Posture
- Succession Cause / Directions on Objection Proceedings
- Outcome
- Objection proceedings to be determined by viva voce evidence; status quo maintained; matter transferred to Kakamega High Court.
- Judges
- HK Chemitei
- Legal Topics
- Succession, Grant Revocation, Beneficiary Rights, Estate Distribution
- 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
Duncan K. Ndayala
Applicant
George Ndayala
Applicant
Joyce Aseyo Kihamba
Applicant
Pamela Vugutsa Mwigai and 4 others
Respondent
Kennedy Susu Ilayioga and 2 others
Interested Party
Procedural Posture
Succession Cause / Directions on Objection Proceedings
Legal Issues
- 1 Whether the grant issued to the 1st Petitioner should be revoked due to lack of consultation with all beneficiaries.
- 2 Whether the applicants' signatures on the consent to the mode of distribution were forged.
- 3 Whether the objection proceedings can be determined solely on affidavit evidence.
Ratio Decidendi
The court determined that the issues raised by the objectors, particularly regarding their alleged exclusion from the succession process and the alleged forgery of their signatures, are serious and cannot be resolved on the basis of affidavit evidence alone. The court held that these matters require viva voce (oral) evidence to ensure a fair and just determination. Accordingly, the court ordered that the objection proceedings be heard through oral testimony and that the status quo regarding the estate be maintained, specifically prohibiting any transfer, sale, or charge of the estate's parcels of land until the objections are resolved. Furthermore, for convenience and cost-effectiveness,...
Court Disposition
Objection proceedings to be determined by viva voce evidence; status quo maintained; matter transferred to Kakamega High Court.
Orders
- Objection proceedings to be determined by way of viva voce evidence.
- Status quo as at the date of these directions to be maintained; no transfer, sale, or charge of any parcels of land from the deceased estate pending determination of the objection.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
SUCCESSION CAUSE NO. 105 OF 2000
IN THE MATTER OF THE ESTATE OF THE LATE REUBEN NDAYALA NDOLO - (DECEASED)
AND
DUNCAN K. NDAYALA..............................1STPETITIONER (DECEASED)
GEORGE NDAYALA…….................…….2ND PETITIONER (DECEASED)
JOYCE ASEYO KIHAMBA….………...…..............…….3RD PETITIONER
AND
PAMELA VUGUTSA MWIGAI AND 4OTHERS..................OBJECTORS
VERSES
KENNEDY SUSU ILAYIOGA AND 2 OTHER....INTERESTED PARTIES
DIRECTIONS
1. The court has perused the chamber summons application by the Objectors dated 21st February, 2017 in which they seek among others to revoke the grant issued to the 1st Petitioner who has since died and the same was later issued to the 3rd Petitioner herein.
2. The sum total of the objection proceedings is that the applicants were never consulted in the process and that they were kept in the dark despite being beneficiaries of the estate.
3. The court has perused the said application together with the supporting affidavits as well as the replying affidavits and the submissions by their counsels on record. What is evident is that there are weighty issues which cannot be determined by way of affidavits evidence only. The issues for instance surrounding the question of the parties’ relationships with the deceased and each other ought to be determined by oral evidence. There was also the question of whether the applicants were all along in the picture an issue which they have denied.
4. They have also denied that they signed the consent to the mode of distribution and that their signatures were forged. These in my view cannot be determined by paperwork but by hard evidence.
5. In the premises I order that the objection proceedings herein be determined by way of viva voce evidence. Secondly let status quo obtaining as at the date of this directions be maintained and specifically no transfer and sale or charge be effected in any of the parcels of land which emanated from the deceased estate pending the determination of the objection proceedings.
6. The court equally notes that the parcels of land are all situate within the former western province or the counties that fall under it. It would thus be easier and cost effective to have this matter heard and determined in the respective courts. For this reason this cause is hereby transferred to Kakamega High court for hearing and determination or until further orders of the court.
7. Orders accordingly.
Dated, signed and delivered at Kitale this 13th day of May, 2019.
__________________
H.K. CHEMITEI
JUDGE
13/5/19
In the presence of:
Arunga for Interested Party
Bororio for the 3rd Petitioner/Respondent
Court Assistant - Kirong
Directions given in open court.