[2005] KEHC 858 (KLR)
The court found that the petitioners failed to disclose the existence of prior succession proceedings in which a grant had already been issued and confirmed for the estate of Alfayo Sitati. This omission constituted a material non-disclosure and rendered the current petition incompetent. The proper procedure...
Source-derived case information.
- Citation
- [2005] KEHC 858 (KLR)
- Parties
- Petitioner: John Maikuma Sitati; Petitioner: John Apura Khisa; Applicant: Gladys Nasimiyu Apura; Applicant: Joseph Sakwa Khisa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 94 of 2002
- Procedural Posture
- Probate and Administration Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; petition struck out
- Judges
- JK Sergon
- Legal Topics
- Probate Procedure, Non Disclosure of Prior Proceedings, Striking Out Petition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Maikuma Sitati
Petitioner
John Apura Khisa
Petitioner
Gladys Nasimiyu Apura
Applicant
Joseph Sakwa Khisa
Applicant
Procedural Posture
Probate and Administration Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the current succession cause is incompetent due to non-disclosure of prior confirmed grant proceedings.
- 2 Whether the petitioners were required to proceed under the earlier succession cause rather than filing a fresh petition.
Ratio Decidendi
The court found that the petitioners failed to disclose the existence of prior succession proceedings in which a grant had already been issued and confirmed for the estate of Alfayo Sitati. This omission constituted a material non-disclosure and rendered the current petition incompetent. The proper procedure required the petitioners to approach the court through the existing succession cause rather than filing a new petition. The preliminary objection was therefore upheld, and the petition was struck out as an abuse of the court process.
Court Disposition
preliminary objection upheld; petition struck out
Orders
- The petition dated 14.10.2002 and its supporting affidavit are struck out.
- The preliminary objection is upheld with costs to the applicants.
Full Case Text
Judgment text and source record
14 paragraphs
IN THE REPUBLIC OF KENYA AT BUNGOMA Prob & Admin Cause 94 of 2002
IN THE MATTER OF THE ESTATE OF ALFAYO SITATI………… DECEASED
AND
JOHN MAIKUMA SITATI JOHN APURA KHISA…………………………………………..…….PETITIONERS
AND
GLADYS NASIMIYU APURA JOSEPH SAKWA KHISA ……………………………………………..APPLICANTS
RULING
By a preliminary objection contained in a notice dated 25th February 2005, Gladys Nasimiyu Apura and Joseph Sakwa Khisa prayed for this succession cause to be struck out and or dismissed on the ground that the same is incompetent, fraudulent and bad in law. Unfortunately the preliminary objection did not attract any response from the petitioners despite the fact that they were served.
Mr. Kraido, advocate for the applicants, argued to the effect that one Jacob Khisa Sitati, now deceased had been granted letters of administration in respect of the Estate of Alfayo Sitati the deceased. The grant was subsequently confirmed vide Bungoma S.P.M P&A cause no.77 of 1994 on 24th November 1994. The petitioner in this petition was named as a beneficiary in the certificate of confirmation of 24. 11. 1994. He failed to disclose the existence of the above succession proceedings when he filed this succession cause.
I have no reason not to believe the applicants assertion that the petitioners ought to have approached this Court or the subordinate Court through Bungoma S.P.M. Succession cause no. 77 of 1994 and not through a fresh petition. Consequently, the petition dated 14. 10. 2002 and its joint supporting affidavit sworn by John Maikuma Sitati and John Apura Khisa are hereby ordered struck out. The preliminary objection is upheld with costs to the applicants.
Dated and delivered this 16th day of November 2005.
J. K. SERGON
JUDGE
In open Court but in the absence of the parties.