[2015] KEHC 3242 (KLR)
The court found that the Petitioner had voluntarily included the Applicant as a liability to the estate in the succession proceedings and in the summons for confirmation of grant. There was evidence of a sale agreement between the Petitioner and the Applicant, and the Applicant had been in occupation of the one acre...
Source-derived case information.
- Citation
- [2015] KEHC 3242 (KLR)
- Parties
- Respondent: Simion Okongo Nyababa; Applicant: __MISSING__
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 411 of 1996
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application for revocation of grant allowed
- Judges
- SJ Chitembwe, AT Sitati
- Legal Topics
- Revocation of Grant, Liabilities of Estate, Sale of Land by Personal Representative, Distribution of Estate, Jurisdiction of Probate Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simion Okongo Nyababa
Respondent
__MISSING__
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the certificate of confirmed grant should be revoked due to the Applicant's interest as a purchaser of part of the estate.
- 2 Whether the Applicant is a liability to the estate and entitled to a share of the property.
- 3 Whether the court has jurisdiction to entertain the Applicant's claim based on the alleged sale agreement.
Ratio Decidendi
The court found that the Petitioner had voluntarily included the Applicant as a liability to the estate in the succession proceedings and in the summons for confirmation of grant. There was evidence of a sale agreement between the Petitioner and the Applicant, and the Applicant had been in occupation of the one acre plot. The Petitioner's denial was deemed evasive, and he did not dispute the sale. The Applicant's interest was omitted from the final distribution, constituting concealment of a material fact. The court held that the application for revocation of the grant was merited and allowed it, ordering cancellation of the certificate of confirmed grant and reversion of the property to...
Court Disposition
application for revocation of grant allowed
Orders
- The certificate of confirmed grant is cancelled.
- If the estate has been subdivided, plot number SOUTH KABRAS/CHEMUCHE/602 shall revert to the name of the deceased.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
PROBATE AND ADMINISTRATION
SUCCESSION CAUSE NO. 411 OF 1996
IN THE MATTER OF: THE ESTATE OF SAULO NABASA(Deceased)
AND
SIMION OKONGO NYABABA..................................PETITIONER
RULING
The application dated 25th November, 2013 seeks to have the certificate of confirmed grant issued herein be revoked. It is supported by the Applicant's affidavit sworn on the same date. The Petitioner/Respondent filed a replying affidavit sworn on 9th April, 2014. parties opted to rely on their pleadings.
The Applicant's main contention is that he bought one acre out of plot number SOUTH KABRAS/CHEMUCHE/602 from the Petitioner. The Applicant's name was included as a liability when the succession cause was filed. Further, when the Petitioner filed an application for the confirmation of the grant, he included the Applicant's name as a liability to the estate. The Applicant has occupied her one acre plot and has built her home.
On his part, the Petitioner denies that the Applicant is a liability to the estate. He maintains that nay purported sale agreement is null and void and that the claim by the Applicant cannot be entertained by the court for want of jurisdiction. Further, the Applciant's claim is statute bared.
I have gone through the relevant forms that where filed by the Petitioner in pursuit of the grant. It is established that the Petitioner voluntarily included the Applicant as a liability tot he estate. The summons for confirmation of the grant dated 9th November, 2009 indicate that the Applicant was to be given one (1) acre in the distribution of the estate. When the parties appeared in court on 22nd March, 2012, they indicated that they had agreed on three acres each. The name of the Applicant was not included in the final distribution. There is also evidence of a sale agreement between the Petitioner and the Applicant.
Given the pleadings herein, I am satisfied that the application for revocation of the grant is merited and the same is hereby allowed. The Petitioner's response is simply evasive. He does not deny that he sold one acre to the Applicant. The certificate of confirmed grant is hereby canceled as prayed. Int he event that the estate has been sub-divided, I do order that plot number SOUTH KABRAS/CHEMUCHE/602revert back to the names of the deceased. Cost of the application to the Applicant.
Dated and signed this 24thday of February, 2015
Said J. Chitembwe
JUDGE
Delivered and countersigned on this ….18th day ofMarch, 2015
Ruth Sitati
JUDGE