Kenya Judgment

High Court · High Court at Busia

John Ouma Ekesa v Ernest Ochieng Murere [2017] KEHC 1863 (KLR)

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Professional case brief

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Source document

01

Holding and result

The court found that the applicant failed to demonstrate any legal defect in the proceedings leading to the grant or any fraudulent conduct by the petitioner in obtaining the grant. The mere existence of a pending forgery case was not shown to have any direct relevance to the succession cause. The applicant did not establish that the petitioner lacked the legal basis to file the succession cause, nor did he show that the grant was obtained improperly. Consequently, the application for revocation of the grant was dismissed for lack of merit.

Court disposition

application dismissed

Orders

  • The application for revocation of grant is dismissed for lack of merit, with costs.
  • The parties are directed to ensure that the succession cause is concluded within six months.

02

Material facts

Parties

John Ouma Ekesa

Applicant

Ernest Ochieng Murere

Respondent

03

Procedural history

  1. Posture

    Probate and Administration / Ruling on Application for Revocation of Grant

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that the petitioner lacked authority to share out the property without consultation, was facing a pending forgery suit in Busia HCCC No. 44 of 2011, and filed the succession cause without a legal basis. He sought revocation of the grant on these grounds.
Respondent
The respondent maintained that he had the legal basis to file the succession cause and that the forgery allegations were unrelated to the probate proceedings. He argued that the applicant had not demonstrated sufficient grounds for revocation of the grant.

05

Court’s reasoning

  1. 01

    Section 76, Law of Succession Act (Cap 160)

    A grant of representation may only be revoked if the applicant demonstrates that the proceedings to obtain the grant were defective, obtained fraudulently, or that the grant has become useless and inoperative.

  2. 02

    Judicial precedent and practice under the Law of Succession Act

    Allegations of criminal conduct, such as forgery, must be shown to have a direct bearing on the probate proceedings to warrant revocation of a grant.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant failed to demonstrate any legal defect in the proceedings leading to the grant or any fraudulent conduct by the petitioner in obtaining the grant. The mere existence of a pending forgery case was not shown to have any direct relevance to the succession cause. The applicant did not establish that the petitioner lacked the legal basis to file the succession cause, nor did he show that the grant was obtained improperly. Consequently, the application for revocation of the grant was dismissed for lack of merit.

Obiter and limits

  • The court noted the inordinate delay in finalizing the succession cause and directed the parties to ensure its conclusion within six months.

Court disposition

application dismissed

  • The application for revocation of grant is dismissed for lack of merit, with costs.
  • The parties are directed to ensure that the succession cause is concluded within six months.

Source and reliance status

High Court

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Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 1863 (KLR)

IN THE HIGH COURT OF KENYA AT BUSIA

PROBATE & ADMINSTRATION NO. 61 OF 2012

IN THE ESTATE OF:

MUKEMO NDEGE MURERE…………………………DECEASED

BETWEEN

JOHN OUMA EKESA..............................APPLICANT/OBJECTOR

AND

ERNEST OCHIENG MURERE....................................PETITIONER

RULING

JOHN OUMA EKESA the objector herein filed an application dated 28th March 2012 for revocation of the grant herein on the following grounds:

1. That the petitioner does not have the authority to share out the property without consulting the applicant.

2. That the petitioner was sued for forgery in Busia HCCC NO.44 of 2011 which is still pending.

3. That the petitioner filed this cause without a legal basis.

I have perused the affidavits of both parties. The issues brought out by the applicant herein do not meet the threshold for annulling a grant.

The applicant and the petitioner are brothers and the applicant has not convinced this court why he says that the petitioner lacks the legal basis to file this succession cause. He equally did not demonstrate what the charge of forgery has to do with this cause.

I have noted that this succession cause has taken a very long time to be finalized. I am making an order for the parties to ensure that this cause is brought to a conclusion within the next six months.

The application is therefore dismissed for lack of merits, with costs.

DELIVEREDandSIGNEDatBUSIA this 5thdayof December, 2017

KIARIE WAWERU KIARIE

JUDGE

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Law of Succession Act (Cap 160)

Legislation

Legislation referenced in the available case record.

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