[2017] KEHC 8149 (KLR)
The court found that service of the application for revocation of grant was inadequate, as not all beneficiaries were served and the affidavit of service lacked necessary details. The court emphasized that fair hearing requires all affected parties to be properly notified and given an opportunity to respond. Since...
Source-derived case information.
- Citation
- [2017] KEHC 8149 (KLR)
- Parties
- Petitioner: Julia Gachora Wiri; Applicant: Joseph Gakotha M Ruciaka
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 323 of 2006
- Procedural Posture
- Succession Cause / Interlocutory Application for Revocation of Grant
- Outcome
- Ruling arrested pending proper service and compliance with court directions.
- Judges
- F Gikonyo
- Legal Topics
- Revocation of Grant, Service of Process, Fair Hearing, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julia Gachora Wiri
Petitioner
Joseph Gakotha M Ruciaka
Applicant
Procedural Posture
Succession Cause / Interlocutory Application for Revocation of Grant
Legal Issues
- 1 Whether all beneficiaries were properly served with the application for revocation of grant.
- 2 Whether the affidavit of service meets the legal requirements for valid service.
- 3 Whether the court can proceed to determine the application without proper service to all affected parties.
Ratio Decidendi
The court found that service of the application for revocation of grant was inadequate, as not all beneficiaries were served and the affidavit of service lacked necessary details. The court emphasized that fair hearing requires all affected parties to be properly notified and given an opportunity to respond. Since the directions to serve submissions were also not complied with, the court held that it could not proceed to make substantive orders on the application until proper service was effected. Justice must not only be done but be seen to be done, and the process of service is integral to this principle. The ruling was therefore arrested pending compliance with the requirements for...
Court Disposition
Ruling arrested pending proper service and compliance with court directions.
Orders
- All beneficiaries to be served with the application dated 18th July 2013 and the applicant's submissions.
- A proper affidavit of service to be filed immediately upon service.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO.323 OF 2006
IN THE MATTER OF THE ESTATE OF THE LATE WIRIIMANYARA (DECEASED)
JULIA GACHORAWIRI ……………....PETITIONER
-VERSUS-
JOSEPH GAKOTHA M RUCIAKA ….. APPLICANT
RULING
Service paramount
Application dated 18th March 2013 is for revocation of grant. The grant herein was confirmed,and certificate of confirmation of grant was issued on 11th March 2008. In the certificate of confirmation 3 beneficiaries shared the estate in the following manner:-
(a) Zaverio Mururu L.R. No. 4154 Kianjai Adj. Sect 50 points
(b) Julia Gachoria Wiri L.R. No. 4154 Kianjai Adj. Sect. 1 Acre
(c) Kenneth Marimba M’Mthambura L.R. No. 4154 Kianjai Adj. Sect 2. 30 Acres
The applicant has not stated whether the estate has been distributed or not. But what is of paramount importance is that all the beneficiaries have not been served with the application yet they will be affected byany revocation of thegrant. The affidavit of service sworn on 13th June, 2016 only relates to service of a hearing notice upon the petitioner at Mbeu location Kamarui sub-location, Kimarichia Village. That kind of service is too generaland may notbe relied upon in making such grave orders sought. The process server should specifically state the manner in which the pleading or notice was served, the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the pleading or notice being served. Needless to state therefore that it is necessary in this case to have given details of and describe the exact place the petitioner was served, for instance at her home or in an office located at such and such place etc. I also note the directionson 14th June, 2016that submissions be filed and served were not adhered to; submissions were not served. Now therefore, when I take all these makes into account, Ifeelthat justice must not onlybe done but be seen to be done. Accordingly, as service is part of fair hearing for, it affords parties an opportunity to be heard,I order that:
(a) All the beneficiaries be served with the application dated 18th July 2013 and the submissions by the applicant.
(b) A proper affidavit of service on the above to be filed immediately upon service.
(c) Meanwhile, I arrest the ruling herein until (a) and (b) above are done.
(d) Mention on 20th February 2017 for directions.
It is so ordered.
Dated,Signed and delivered in open court at Meru this 16th day of January, 2017.
………………………..
F. GIKONYO
JUDGE
In the presence of:
Mutura advocate for applicant
Petitioner absent
………………………………….
F. GIKONYO
JUDGE