[2008] KEHC 2646 (KLR)
The court held that the application was incompetent because it was brought under the wrong provisions of the law. The applicant's grievances regarding the respondent's refusal to sign transfer documents and the alleged improper administration of the estate should have been pursued through an application for...
Source-derived case information.
- Citation
- [2008] KEHC 2646 (KLR)
- Parties
- Respondent: Margaret Ciakirimo Jason; Applicant: David Njue Jason
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 180 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons Seeking Execution Orders in Succession Cause
- Outcome
- application struck out as incompetent with costs to the respondent
- Judges
- SP Ouko
- Legal Topics
- Succession Proceedings, Grant Confirmation, Estate Administration, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Ciakirimo Jason
Respondent
David Njue Jason
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons Seeking Execution Orders in Succession Cause
Legal Issues
- 1 Whether the court can authorize the Executive Officer to execute transfer documents for the suit property in place of the respondent.
- 2 Whether the application is properly brought under section 76(1) of the Law of Succession Act and Rule 73 of the Probate and Administration Rules.
- 3 Whether the respondent's refusal to sign transfer documents justifies the orders sought by the applicant.
Ratio Decidendi
The court held that the application was incompetent because it was brought under the wrong provisions of the law. The applicant's grievances regarding the respondent's refusal to sign transfer documents and the alleged improper administration of the estate should have been pursued through an application for revocation or annulment of the grant under section 76(d)(ii) of the Law of Succession Act. Similarly, the respondent's allegations regarding the grant's issuance without her knowledge or consent also fall within the ambit of revocation or annulment proceedings. The court found that the inherent jurisdiction under Rule 73 could not be invoked to grant the substantive orders sought, and...
Court Disposition
application struck out as incompetent with costs to the respondent
Orders
- The chamber summons dated 5th December, 2007 is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Misc Succ Cause 180 of 2007
IN THE MATTER OF THE ESTATE OF JASON MBUNGU (DECEASED)
MARGARET CIAKIRIMO JASON ………. PETITIONER/RESPONDENT
VERSUS
DAVID NJUE JASON ……………….…………................…APPLICANT
RULING
The chamber summons before me is dated 5th December, 2007 and is expressed to be brought under section 76(1) of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. It seeks an order empowering the Executive Officer of the court to execute all the necessary documents in respect of parcel of land No. L.R. KARINGANI/MUIRU/555 to effect transfer of the same in terms of certificate of confirmation in Chuka PM’s Succession Cause No. 49 of 2003. It seeks further that the respondent be directed to produce the original title deed in respect of the suit property and in default the District Land Registrar, Meru South to be directed to dispense with the production of the said title deed during registration.
The application is based on the grounds that the respondent to whom a grant was issued and subsequently confirmed has refused to sign necessary documents to effect distribution of the estate. That due to the conduct of the respondent other beneficiaries are suffering. That unless the orders sought are granted the orders of confirmation of the grant shall be in vain. The respondent has filed a replying affidavit in which she has denied that the grant has been confirmed. She avers that the thumb print in the application for confirmation of the grant purported to be hers is a forgery. She has admitted refusing to sign the transfer documents on that ground and also because the mode of distribution did not reflect the agreement by the dependants.
A similar application was made in Chuka PM Succession Cause No. 49 of 2003 but was dismissed the court holding that it had no jurisdiction to deal with it. The applicant is seeking that a third party, the Executive Officer, be authorized to execute transfer documents in respect of the suit property because the respondent has declined. The application is, however, brought under section 76(1) and Rule 73 aforesaid, which deal with revocation of the grant and the inherent jurisdiction of the court, respectively.
Where an interested party in a succession cause, whether the grant has been confirmed or not, is aggrieved by the failure of the person to whom the grant was made to proceed diligently with the administration of the estate, he may apply to the court to revoke or annul the grant. See section 76(d) (ii) of the Law of Succession Act. The applicant’s complaints against the respondent ought to have been brought under the above provision of the Law of Succession Act.
Similarly, the respondent has alleged that the grant issued in her favour was made without her knowledge or consent. That too can only be raised in an application for revocation or annulment of the grant.
This application is incompetent for the reasons stated and is struck out with costs to the respondent.
Dated and delivered at Meru this 17th….day of …April…. 2008.
W. OUKO
JUDGE