[2015] KEHC 1932 (KLR)
The court found that the confirmation of the grant on 26th April, 2013 was irregular because there was a protest on record filed by the applicant, which had not been heard or determined. The respondents were served with the protest and did not deny this fact. The respondents also failed to oppose the application or...
Source-derived case information.
- Citation
- [2015] KEHC 1932 (KLR)
- Parties
- Applicant: Simon Kaloki Kanyele; Respondent: Keli Kimilu; Respondent: John Makau Kimilu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 752 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Stay and Revocation of Grant
- Outcome
- application allowed with costs
- Judges
- BT Jaden
- Legal Topics
- Succession, Grant Confirmation, Revocation of Grant, Protest Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kaloki Kanyele
Applicant
Keli Kimilu
Respondent
John Makau Kimilu
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Stay and Revocation of Grant
Legal Issues
- 1 Whether the confirmation of the grant was irregular due to a pending protest by the applicant.
- 2 Whether the grant should be stayed and/or revoked as a result of the irregular confirmation.
Ratio Decidendi
The court found that the confirmation of the grant on 26th April, 2013 was irregular because there was a protest on record filed by the applicant, which had not been heard or determined. The respondents were served with the protest and did not deny this fact. The respondents also failed to oppose the application or file submissions. The court concluded that the applicant's right to be heard was violated, and therefore, the application for stay and revocation of the grant was merited.
Court Disposition
application allowed with costs
Orders
- The application is allowed with costs.
- The implementation of the grant confirmed on 26th April, 2013 is stayed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 752 OF 2011
IN THE MATTER OF THE ESTATE OF LUCIA MBITHE NZAU (DECEASED)
KELI KIMILU........1ST RESPONDENT
JOHN MAKAU KIMILU............2ND RESPONDENT
VERSUS
SIMON KALOKI KANYELE.............APPLICANT
RULING
1. The application dated 3rd June, 2012 seeks orders that there be a stay of the implementation of the grant confirmed on 26th April, 2013 and that the said grant be annulled and/or revoked.
2. According to the affidavit in support, the Applicant, Simon Kaloki Kanyele had filed a protest to the confirmation of the grant but the grant was confirmed before the protest was heard and without the Applicant’s knowledge.
3. The Respondent did not file any papers in opposition to the application.
4. Although directions were taken in the presence of both sides that the application be canvassed by way of written submissions, the Respondents did not file any. I have considered the application and the submissions filed by the Applicant.The Applicant has exhibited the copies of the affidavit in protest and the receipt issued upon filing of the same on 28th October, 2011. The confirmation of the grant on 26th April, 2013 was therefore irregular since there was a protest already on record.It is not denied that the Respondents were served with the protest.
5. In the premises the application is allowed with costs.
B. THURANIRA JADEN
Dated and delivered at Machakos this 7th day of October,2015
B. THURANIRA JADEN
JUDGE