[2013] KEHC 2123 (KLR)
The court found that the applicant's allegations of fraud and lack of notification were unsubstantiated. Evidence showed that the applicant participated in family meetings and signed the consent authorizing the respondent to file for the grant. The applicant did not controvert the respondent's evidence regarding the...
Source-derived case information.
- Citation
- [2013] KEHC 2123 (KLR)
- Parties
- Applicant: Joshua Maritim Tamoge; Respondent: Chelule Arap Tamoge
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 20 of 2010
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- summons for revocation of grant dismissed
- Legal Topics
- Revocation of Grant, Probate and Administration, Fraud in Succession, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Maritim Tamoge
Applicant
Chelule Arap Tamoge
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by the petitioner.
- 2 Whether the applicant and other beneficiaries were notified and consented to the petition for grant.
- 3 Whether the death certificate used in the proceedings was forged.
Ratio Decidendi
The court found that the applicant's allegations of fraud and lack of notification were unsubstantiated. Evidence showed that the applicant participated in family meetings and signed the consent authorizing the respondent to file for the grant. The applicant did not controvert the respondent's evidence regarding the family meeting and consent. The court also found no evidence of forgery in the death certificate, noting that two certificates were issued by the same registrar and that the informant was described as a relative in both. The court concluded that the summons for revocation of grant lacked merit and appeared to be an attempt to delay the proceedings.
Court Disposition
summons for revocation of grant dismissed
Orders
- The summons for revocation of grant is dismissed.
- Each party shall bear his or her own costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
SUCCESSION CAUSE NO. 20 OF 2010
IN THE MATTER OF THE ESTATE OF THE LATE CHESENGENY SANG ALIAS CHESENGENY ARAP SANG ALIAS KIPRUTO SANG (DECEASED)
AND
JOSHUA MARITIM TAMOGE....................................APPLICANT
VERSUS
CHELULE ARAP TAMOGE..................................PETITIONER
RULING
This decision is the outcome of the summons for revocation of grant taken out by Joshua Maritim Tamoge, the applicant herein, dated 11th May 2012. The applicant is seeking for the revocation of the grant in respect of the estate of Chesengeny Sang alias Chesengeny Arap Sang alias Kipruto Sang, deceased issued on 18th October 2010 to Chelule Arap Tamoge the Petitioner herein.
The summons is supported by the applicant's affidavit. The petitioner filed a replying affidavit he swore to oppose the summons.
When the summons came up for inter-parties hearing learned counsels appearing in the cause agreed to have the application determined by affidavit evidence and by written submissions.
I have considered the rival written submissions plus the material placed before this court. The gist of the applicant's complaint is that the Petitioner fraudulently obtained the grant. It is alleged that the applicant and other beneficiaries were not notified of the filing of the Petitioner for letters of administration hence no consent was given. The Applicant further averred that the certificate of death used was forged. According to the applicant the deceased passed away on 8th June 1972 as opposed to 25th April 1979. The Petitioner on the other hand is of the view that the summons lacks merit hence it should be dismissed. He stated that the Applicant and other beneficiaries signed the consent authorizing him to apply for the grant.
He further averred that the deceased's family made prior to the filing of the petition. I think the question which this court has been asked to determine is whether the grant was lawfully obtained. I have already stated that the Applicant is complaining that the deceased's family were not consulted by the Petitioner before filing the Petition. He says he was not notified. The Petitioner has responded to those accusations by filing a replying affidavit which clearly show that the deceased's family actually met on 30th August 2008 where upon they resolved to authorize the Petitioner to file these proceedings. The Applicant has not deemed it fit to controvert this assertion.
It is also clear that the Applicant herein signed the consent to authorize the Petitioner to file these proceedings. It is therefore obvious that the Applicant's allegations lacks merit.
In my view I think the summons for revocation of grant was meant to delay the conclusion of this cause. I do not understand why the Applicant decided to lie under oath. He participated in family meetings to authorize the institution of these proceedings. He cannot be allowed to turn around and deny what he had authorized to be done. The Applicant has stated that the death certificate used in these proceedings was forged. I do not think so. What is apparent is that there are two death certificates both were issued by the Kericho District registrar of births and deaths.
In both cases, the name of the informant was not mentioned. The registrar simply stated that the informant was a relative.
In sum I see no merit in the summons. The same is dismissed with each party meeting his or her own costs.
Dated, signed and delivered this 20th day of September 2013.
J.K.SERGON
JUDGE
In open court in the presence of
Mr.Mutai holding brief for Mr. Orina for Petitioner
N/A Mr. Maengwe for Objector