[2013] KEHC 5776 (KLR)
The applicant failed to prove that he purchased the land from the deceased, as he did not produce any agreement of sale or proof of payment. The court found that the respondent was the only surviving next of kin and was therefore entitled to inherit the deceased's property under Section 39(1) of the Law of...
Source-derived case information.
- Citation
- [2013] KEHC 5776 (KLR)
- Parties
- Applicant: Josphat Miano S. Chabangu; Respondent: Muthoni Gikungi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 41 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Summons for Revocation and Annulment of Confirmed Grant
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Succession, Revocation of Grant, Inheritance Rights, Next of Kin, Clan Rights
- 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
Josphat Miano S. Chabangu
Applicant
Muthoni Gikungi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Summons for Revocation and Annulment of Confirmed Grant
Legal Issues
- 1 Whether the grant of letters of administration to the respondent was obtained fraudulently or by concealment of material facts.
- 2 Whether the applicant, as a clan elder or alleged purchaser, has any legal right to the deceased's land in preference to the respondent as next of kin.
- 3 Whether the proceedings to obtain the grant were defective in substance.
Ratio Decidendi
The applicant failed to prove that he purchased the land from the deceased, as he did not produce any agreement of sale or proof of payment. The court found that the respondent was the only surviving next of kin and was therefore entitled to inherit the deceased's property under Section 39(1) of the Law of Succession Act. The applicant's status as a clan elder did not confer any legal right to the estate in the presence of a surviving sibling. The application for revocation and annulment of the confirmed grant was dismissed for lack of merit, and any cautions registered on the land were ordered to be lifted.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 1/04/2005 for revocation and/or annulment is dismissed with costs.
- Any caution or cautions registered on the land LR. MUTIRA/KANYEI/668 should be lifted forthwith.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. APPLICATION NO. 41 OF 2005
JOSPHAT MIANO S. CHABANGUE.....……..................APPLICANT
VERSUS
MUTHONI GIKUNGI..............................................RESPONDENT
R U L I N G
The applicant filed this summons for revocation and annulment of confirmed grant on 1st April 2005. His grounds are:-
The confirmation of the grant was obtained fraudulently by making false statement and by concealing from the court material things to the case.
The grant was obtained by means of untrue allegation of facts essential in part of law to justify the grant not withstanding that the allegation was made in ignorance inadvertently.
The proceedings to obtain the grant were defective in substance.
The gist of his application is that the deceased had no wife or children and had sold the land to the applicant who was also a clan elder. He repeats the same in his affidavit in support.
The respondent filed a replying affidavit sworn on 19/4/2005 explaining that she was the only surviving close relative of the deceased. She denied knowing the applicant. The matter proceeded by way of viva voce evidence with both parties giving evidence.
The applicant confirmed that the deceased was from his clan. And that he owned land MUTIRA/KANYEI/1668. Before his death he sold the land to one Joseph but refunded the money 2,500/= in 1996. He told them to take the land and the applicant took possession. When he died they informed the respondent who said she did not want the land as she had her husband's.
The applicant wants the land to go back to the clan. The respondent told the court she was the deceased's sister and only surviving next of kin. She said her brother's land could only go to the clan if there was no next of kin surviving. In cross examination she admitted that a Mr. Muriithi used to take care of the deceased. And that the applicant went to the land when the deceased died.
Both counsels agreed to file written submissions which they did. I have carefully gone through the submissions. To correct Mr. Magee, the applicant did not produce before this court any agreement of sale or any proof of payment for the land.
There is no dispute that the deceased herein died on 2/3/98. Its also not disputed that he was the registered owner of land LR. MUTIRA/KANYEI/668. Its also undisputed that the deceased had no wife nor children as at 2/3/98 when he died. Further its not disputed that his only surviving next of kin was his sister the respondent herein.
The said sister applied for letters of administration which were issued to her and were later confirmed. The above property was wholly inherited by her. The applicant cautioned the land and filed this application claiming interest as a clan elder and purchaser of the land.
It was therefore his duty to prove to this court that indeed he had bought the said land from the deceased prior to his demise. Inspite of various documents he had promised to avail nothing was produced before his case was closed. Strange enough in his evidence he was saying he wanted the land to be reverted to the clan. Why would he want the land to revert to the clan if indeed he had bought the land from the deceased? If at all the clan members decided to assist the deceased when he was unwell that was a kind gesture for an ailing member of their clan. But did this give them a right to take over the deceased's property? They could only do so in the absence of any surviving kindred as set out in Section 39(1) of the Law of Succession Act.
Being a clan elder did not place the applicant in this line up of inheritors of the deceased. The respondent while applying for letters of grant had no duty of informing the clan and in particular the applicant what she was doing about her deceased brother's estate.
I do find that the applicant has failed to prove his claims against the respondent. I dismiss the application dated 1/04/2005 for revocation and/or annulment with costs.
Any caution/cautions registered on the land should be lifted forthwith.
DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF JUNE 2013.
H.I. ONG’UDI
J U D G E
In the presence of:-
Ms. Wairimu for Mr. N. Kagio for Applicant
Mr. Magee for Respondent
Parties
Njue CC