[2003] KEHC 874 (KLR)
The court determined that, given the conflicting affidavits and the gravity of the allegations regarding fraudulent concealment and the true ownership of the property, it is necessary for the applicants to be given an opportunity to present oral evidence. This will allow the court to assess the credibility of the...
Source-derived case information.
- Citation
- [2003] KEHC 874 (KLR)
- Parties
- Applicant: Sophia Salim Gathiaka; Applicant: Abdalla Kaniki; Respondent: Applicants (various claimants)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1831 of 1996
- Procedural Posture
- Succession Cause / Interlocutory Ruling on Application for Revocation of Grant
- Outcome
- Application for revocation or annulment of grant to proceed by way of oral evidence; no final determination on revocation at this stage.
- Judges
- JA Aluoch
- Legal Topics
- Succession, Revocation of Grant, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sophia Salim Gathiaka
Applicant
Abdalla Kaniki
Applicant
Applicants (various claimants)
Respondent
Procedural Posture
Succession Cause / Interlocutory Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by concealing material facts regarding the ownership of plot No.B2/4 (A&B).
- 2 Whether the applicants are entitled to a share of the estate as members of the family of the late Abdalla Nzito Ndambu.
- 3 Whether the property in question was held by the deceased as a trustee for the family or as a sole proprietor.
Ratio Decidendi
The court determined that, given the conflicting affidavits and the gravity of the allegations regarding fraudulent concealment and the true ownership of the property, it is necessary for the applicants to be given an opportunity to present oral evidence. This will allow the court to assess the credibility of the parties and make a just determination on the application for revocation or annulment of the grant. The court therefore directed that the matter be mentioned before the Presiding Judge, Family Division, for allocation to a judge to hear viva voce evidence. No determination was made on the merits of the application at this stage.
Court Disposition
Application for revocation or annulment of grant to proceed by way of oral evidence; no final determination on revocation at this stage.
Orders
- File to be placed before the Presiding Judge, Family Division, for mention and allocation to a judge for hearing of oral evidence on the application for revocation or annulment of the grant.
- No order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1831 OF 1996
IN THE MATTER OF THE ESTATE OF HEMED ABDALLA KANIKI
(DECEASED)
RULING
A grant of letters of administration, intestate, to the estate of the late Hemed Abdalla Kaniki, was issued to Sophia Salim Gathiaka and Abdalla Kaniki, widow and son respectively, on 26th January 1999.
In form P&A 5, i.e. the affidavit in support of petition for letters of administration intestate, the petitioners disclosed the deceased properties as shown in para 6, i.e. BLOCK L.R. 171/XII MOMBASA A&B BLOCK B2/4 ORIGINAL 36/VII/581, L.R. NO.36/VII/632, L.R NO. 36/VII/633, CALIFONIA NAIROBI.
The estate was estimated to be valued at Kshs.6 million. I have not found in the court file a Certificate of confirmation of grant of letters of administration which would ordinarily show how the property was distributed. But whatever the case, several applicants moved the court to revoke the grant of letters of administration issued to the petitioners, mainly on the grounds inter alia, that “the grant was obtained fraudulently by making a false statement thereby concealing from the court the fact that plot No.B2/4 (A&B) is a family property for the family of the late Abdalla Nzito Ndambu, Hemed Kaniki’s father and that the said Hemed Abdalla Kaniki, had the property registered in his name as a trustee for the family, and not as a sole prorietor.
There are various affidavits in the court file sworn and filed by the applicants, claiming a share of this property.
The petitioners have denied the claim of ownership by the applicants.
Though the advocates consented to prepare written submissions for the determination of summons for the revocation or annulment of the grant, I have read through their submissions but has come to the considered conclusion that the applicants should be given a chance to address the court by way of “viva voce” evidence, to enable the court to judge their credibility, and therefore decide on the truth or otherwise of their allegations.
I am therefore directing that this file be placed before the Presiding Judge, Family Division for mention with a view to allocating the same to a Judge who will listen to oral evidence of the parties, on the application for revocation or annulment of the grant. I make no order as to the costs of the summons for revocation, as the same has not been determined.
Dated at Nairobi this 22nd day of August, 2003.
JOYCE ALUOCH
JUDGE