[2018] KEHC 8161 (KLR)
The court found that the applicant failed to provide any evidence, either by affidavit or otherwise, to support his assertions of concealment or exclusion from inheritance. The applicant did not comply with the court's directive to propose a mode of distribution or substantiate his claims. In the absence of evidence...
Source-derived case information.
- Citation
- [2018] KEHC 8161 (KLR)
- Parties
- Applicant: Joram Luvisia Simiyu; Respondent: William Wekesa Tumbo
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 359 of 2009
- Procedural Posture
- Probate Application / Ruling on Summons for Revocation of Grant
- Outcome
- Application for revocation of grant dismissed; confirmed grant reinstated.
- Judges
- A Ali-Aroni
- Legal Topics
- Revocation of Grant, Succession, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joram Luvisia Simiyu
Applicant
William Wekesa Tumbo
Respondent
Procedural Posture
Probate Application / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the confirmed grant was obtained fraudulently or by concealment of material facts.
- 2 Whether the applicant/objector was excluded from inheritance without justification.
- 3 Whether there was sufficient evidence to warrant revocation or annulment of the grant.
Ratio Decidendi
The court found that the applicant failed to provide any evidence, either by affidavit or otherwise, to support his assertions of concealment or exclusion from inheritance. The applicant did not comply with the court's directive to propose a mode of distribution or substantiate his claims. In the absence of evidence and in the interest of justice, the court held that there was no basis to revoke the confirmed grant. The grant issued on 19th May 2014 was reinstated, and the application for revocation was dismissed.
Court Disposition
Application for revocation of grant dismissed; confirmed grant reinstated.
Orders
- The grant issued on 19th May 2014 is reinstated.
- Application for revocation or annulment of grant is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
PROBATE & ADMINISTRATION CAUSE NO.359 OF 2009
IN THE MATTER OF THE ESTATE OF LUDIA MULEMIA PAULO....DECEASED
AND
JORAM LUVISIA SIMIYU............APPLICANT/OBJECTOR
VERSUS
WILLIAM WEKESA TUMBO.............................PETITIONER
RULING
The Objector filed summons for revocation or annulment of grant of Probate dated 16th July, 2014 seeking for revocation of a grant that had been confirmed on 8th May, 2014; on grounds that the same was obtained secretly without knowledge and consent of the applicant, one of the sons of the deceased, and that the Petitioner had concealed material fact that the Objector together with Paul Simiyu, Bob Simiyu and Welamondi Simiyu Tumbo were the only ones to inherit the estate of the deceased as the Petitioner and the other siblings had a father whom they would inherit from, whereas the Objector and those he named had no father.
In objecting to the application for revocation the Petitioner stated that several of his siblings were in Court during confirmation of the grant and had not raised any objection, secondly the land belonged to their deceased mother and therefore they were all her children entitled to inherit, further he had also had a share each for their sister’s two children.
The Court directed the parties to amicably settle the matter and / or each file a mode of distribution.
The Petitioner had his mode of distribution known as had been included in the initial confirmed grant. Despite the Court’s directive the Objector did not make any proposal, neither did he apart from making an assertions adduce any evidence not even by way of an affidavit to support the said assertions.
In the circumstances therefore and in the absence of any evidence and in the interest of justice and in order to bring this matter to a closure the grant issued on 19th May 2014 be and is hereby reinstated, the Court has no basis to revoke the same.
DATED and DELIVERED at BUNGOMA this 1st day of February, 2018
ALI-ARONI
JUDGE