[2013] KEHC 6197 (KLR)
The court found that the order used by the respondents to transfer Kiambaa/Kihara/382 into their names was nullified in a previous ruling, as the Senior Resident Magistrate lacked jurisdiction to enter judgment in terms of the elders' award. The revocation application had been pending since 2001 without plausible...
Source-derived case information.
- Citation
- [2013] KEHC 6197 (KLR)
- Parties
- Applicant: Daniel Kamau Ngugi; Respondent: Harrison Muita Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 204 of 1997
- Procedural Posture
- Succession Cause / Ruling on Application for Dismissal and Revocation
- Outcome
- Application allowed; summons for revocation dismissed for want of prosecution; change of ownership revoked; administrators to be registered as trustees; costs awarded to the estate.
- Judges
- DN Musyoka
- Legal Topics
- Grant Revocation, Trusteeship of Estate, Fraudulent Transfer, Jurisdiction of Magistrate, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kamau Ngugi
Applicant
Harrison Muita Kariuki
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Dismissal and Revocation
Legal Issues
- 1 Whether the summons for revocation dated 16th February 2001 should be dismissed for want of prosecution.
- 2 Whether the entry or change of ownership of Kiambaa/Kihara/382 after the deceased's demise should be revoked.
- 3 Whether the administrators should be registered as trustees of the property as per the confirmed grant.
Ratio Decidendi
The court found that the order used by the respondents to transfer Kiambaa/Kihara/382 into their names was nullified in a previous ruling, as the Senior Resident Magistrate lacked jurisdiction to enter judgment in terms of the elders' award. The revocation application had been pending since 2001 without plausible explanation for the delay. Given the nullification of the underlying order and the lack of prosecution, the court determined that the application for revocation should be dismissed. The court further held that the administrators should be registered as trustees of the property in accordance with the confirmed grant, and awarded costs to the estate.
Court Disposition
Application allowed; summons for revocation dismissed for want of prosecution; change of ownership revoked; administrators to be registered as trustees; costs awarded to the estate.
Orders
- The summons for revocation dated 16th February 2001 is dismissed for want of prosecution.
- The entry or change of ownership of Kiambaa/Kihara/382 done after the demise of the deceased is revoked.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
SUCC CAUSE NO: 204 OF 1997
IN THE MATTER OF THE ESTATE OF NGUGI KAMAU – (DECEASED)
RULING
The summons dated 7th November 2012 seeks dismissal of the summons for revocation dated 16th February 2001 for want of prosecution. It also seeks that the entry or change of ownership of Kiambaa/Kihara/382 done after the demise of the deceased be revoked and the administrators be registered as trustees thereof as per the confirmed grant dated 30th April 1998. It is also prayed that the applicants in respect of the revocation application be condemned to pay the costs of this application.
The application is supported by the affidavit of Daniel Kamau Ngugi, one of the co-administrators. He avers that the land in question, Kiambaa/Kihara/382, belonged to the deceased, but the applicants in the application dated 16th February 2001 caused it to be registered in their names as co-owners after the death of the deceased. They did so under a court order, which has subsequently been declared null by this court in this cause in a ruling delivered on 24th July 2008.
In reply, Harrison Muita Kariuki, one of the applicants in the application dated 16th February 2001, has deponed, in an affidavit sworn on 18th February 2013, that he and his associates have not been indolent. He pleads that the grant was obtained fraudulently as it was not disclosed in the petition that Kiambaa/Kihara/382 was registered in their names.
I have carefully studied the papers filed herein, inclusive of the written submissions by counsel. I have paid particular attention to the ruling delivered on 24th July 2008. I note that the said ruling has not be appealed against. In nullifying the order which the said applicants used to have the property transferred to their names, Rawal J., as she then was, said unequivocally:
“... the learned Senior Resident Magistrate therefore did not have jurisdiction to enter judgment in terms of the award of panel of elders.”
In the face of this I do not think the said applicants can get far with their revocation application. I note that it has been pending since 2001 and no plausible reasons have been given for its non- prosecution. The application dated 7th November 2012 is merited. I allow it. I award costs of the application to the estate.
DATED, SIGNED and DELIVERED at NAIROBI this 5th DAY OF July, 2013.
W. M. MUSYOKA
JUDGE