[2011] KEHC 594 (KLR)
The court found that the applicant's grievances regarding the distribution of the estate and alleged prior allocation of land parcels had already been considered and determined by the trial court. The applicant failed to provide evidence of fraud or concealment of material facts in the grant process, and did not...
Source-derived case information.
- Citation
- [2011] KEHC 594 (KLR)
- Parties
- Applicant: Edward Ireri; Respondent: Laurenzia Njoka Njue; Interested Party: Salesio Muriuki Bernard
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 236 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant and Stay
- Outcome
- application dismissed with costs
- Judges
- AG Ringera
- Legal Topics
- Succession, Revocation of Grant, Distribution of Estate, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Edward Ireri
Applicant
Laurenzia Njoka Njue
Respondent
Salesio Muriuki Bernard
Interested Party
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant and Stay
Legal Issues
- 1 Whether the grant of letters of administration and its confirmation were obtained fraudulently or by concealment of material facts.
- 2 Whether the trial court had pecuniary jurisdiction over the estate.
- 3 Whether the applicant is entitled to revocation of the confirmed grant based on alleged prior allocation of land parcels by the deceased.
Ratio Decidendi
The court found that the applicant's grievances regarding the distribution of the estate and alleged prior allocation of land parcels had already been considered and determined by the trial court. The applicant failed to provide evidence of fraud or concealment of material facts in the grant process, and did not raise the issue of pecuniary jurisdiction before the trial court or provide a valuation of the estate. The proper avenue for challenging the distribution was by appeal, not by an application for revocation of grant. Consequently, the application for stay and revocation was dismissed as meritless.
Court Disposition
application dismissed with costs
Orders
- The application for stay and revocation of grant is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 236 OF 2011
IN THE MATTER OF THE ESTATE OF NJUE NGONDI –DSD
AND
(IN THE MATTER OF RUNYENJES SRMCC SUCCESSION CAUSE NO. 56 OF 2009)
EDWARD IRERI………………….................………..…………… APPLICANT
VERSUS
LAURENZIA NJOKA NJUE ………….............…………………RESPONDENT
AND
SALESIO MURIUKI BERNARD…………...................….INTERESTED PARTY
R U L I N G
An application by way of summons under Section 76 of the Law Succession Act (Cap 160) and rule 44 of the Probate and Administration Rules was filed by the Applicant seeking the revocation of the confirmed grant issued on 26th May 2011 to the Respondent in respect of the estate of Njue Ngondi. It is alleged that the grant and confirmation were obtained fraudulently by the making of a false statement and the concealment of material facts. It was further alleged that the grant was obtained by means of untrue allegation of facts.
From the supporting affidavit of the Applicant and the replying affidavit of the Respondent and Salesio Muriuki Bernard, respectively, the deceased was married to 3 wives namely: Adere Cianda (deceased), Flora Ciamwari (deceased) and the Respondent. Adere and Flora had 6 children each and the Respondent has 7 children. The Applicant is from the house of Adere and Salesio is from the house of Flora. The deceased died on 7th July 2008 leaving 3 parcels of land as follows: Kyeni/Mufu/2780, Kyeni/Kigumo/4509 and Kyeni/Kigumo/4508. The Respondent successfully petitioned the Senior Resident Magistrate’s Court at Runyenjes for letters of administration. The letters were confirmed on 26th May 2011. The confirmation was subsequent to the receipt of oral evidence from all the parties and their witnesses. The trial court gave each child of the deceased an equal share in parcels 2780 and 4509. the Respondent got 0. 681 of an acre in 4509 when each child was give 0. 227 of an acre and 0. 25 of an acre in 2780 when each child got 0. 44 of an acre. Njau Njue Ngondi is one of the children of Flora. He was given the whole of 4508 on the basis that he had purchased the same from the deceased before death.
The trial court was required under Section 71 (2) of the Act to specify all the persons beneficiary entitled to the estate and to indicate their respective shares. This is what it apparently did. The Applicant claims that the deceased had before his death given him parcels 4508 and 4509 in 1967 and that since then he has lived thereon with his family and that he had extensively and substantially developed the same. The other allegation was that the estate of the deceased was beyond the pecuniary jurisdiction of the trial court. No valuation of the estate was annexed and there is no indication that the issue of jurisdiction was raised before the trial court. Regarding the issue of the 2 parcels, it would appear that the Applicant was not able to persuade the trial court with his claim. The court found the parcels belonged to the estate of the deceased and were consequently available for distribution to the beneficiaries. If the Applicant was aggrieved by that decision he ought to have appealed.
My preliminary view is that this application is not the forum for the resolution of the grievances of the applicant. This is why I consider the present request for stay pending the resolution of the quest for revocation meritless. It is hereby dismissed with costs.
DATED AND SIGNED AT BUNGOMA THIS 28TH DAY OF SEPTEMBER 2011
A.O. MUCHELULE
J U D G E
DELIVERED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER 2011
H.ONG’UDI
J U D G E
JUDGE