[2015] KEHC 4989 (KLR)
The court found that the respondent failed to disclose the existence of the applicants/objectors, who are widows of the deceased, during the succession proceedings. This amounted to concealment of material facts, warranting the revocation of the grant issued to the respondent. The court further noted that the...
Source-derived case information.
- Citation
- [2015] KEHC 4989 (KLR)
- Parties
- Applicant: Margaret Juma; Applicant: Sarah Achieng; Applicant: Joyce Ajwang; Respondent: Gabriel Oluoch Menya
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Separation Cause 552 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application allowed; grant revoked
- Legal Topics
- Revocation of Grant, Concealment of Material Facts, Succession Proceedings, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Juma
Applicant
Sarah Achieng
Applicant
Joyce Ajwang
Applicant
Gabriel Oluoch Menya
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant issued to the respondent should be revoked due to concealment of material facts.
- 2 Whether the applicants/objectors, as widows of the deceased, were entitled to be notified and included in the succession proceedings.
- 3 Whether the respondent's claim to the suit property was properly established.
Ratio Decidendi
The court found that the respondent failed to disclose the existence of the applicants/objectors, who are widows of the deceased, during the succession proceedings. This amounted to concealment of material facts, warranting the revocation of the grant issued to the respondent. The court further noted that the respondent was aware of the applicants' existence and should have involved them, particularly at the confirmation stage. The court also observed that the respondent's claim to the suit property required further proof. Consequently, the grant issued to the respondent was revoked, as was the grant issued by the Ukwala Court, and the matter was transferred for further determination.
Court Disposition
application allowed; grant revoked
Orders
- The grant issued on 25/2/13 and confirmed on 22/10/13 is revoked.
- All consequences arising from the said confirmed grant are annulled.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION NO.552 OF 2011
IN THE MATTER OFTHE ESTATES OF: CAMLUS ONYIMBO OKECH
AND
IN THE MATTER OF AN APPLICATION BY:
MARGARET JUMA
SARAH ACHIENG-OBJECTORS
JOYCE AJWANG
AND
GABRIEL OLUOCH MENYA …............................PETITIONER/RESPONDENT
R U L I N G
The application dated 26. 11. 14 by the Objectors/applicant pray for an order that the grant issued herein to the petitioner be annulled or revoked. The applicant states that the grant was issued on 10/1/94, but that was erroneous as no such grant exist. Instead the grant in question was issued on 25/2/13 and confirmed on 22/10/13.
The application is supported by the applicants affidavit jointly sworn on 26/11/2014. They argue that the deceased was their husband who left them together with several children. They have attached some land dispute proceedings of 5/12/96 which shows the suit land having been determined in favour of the deceased against the petitioner's family.
The petitioner did file a reply vide the affidavit sworn on 10/2/15 in which he gave a narration of how he filed some citation proceedings which led him eventually be granted the grant and later confirmed.
I have perused the application together with the attendant submissions by the counsels. From the history of the matter it appears that there was no dispute that the deceased all along has been the registered proprietor of land parcel No. EAST UGENYA.KATHIENO 'B'/94. The respondent on the other hand does not dispute that the applicants/objectors are the deceased's widows. His only claim is that his father Menya Yogo Owera has been staying in the suit properly as far back as 1960.
The other interesting dimension is that the applicants did filed succession cause No.6/2011 at Ukwala and actually obtained grant on 18/8/2011. The same was however not confirmed.
The plain understanding of the entire proceedings by the respondent in the proceedings is that he was well aware of the existence of the applicants/objectors herein. At least at the point of confirmation of the grant he ought to have informed them. Further I find that there is need for the respondent to prove his true claim on the suit property probably by adduction of further evidence.
In the premise I do allow the application herein by revoking the grant issued on 25/2/13 and confirmed on 22/10/13 on the grounds that the respondent failed to conceal material facts. The consequences arising from the said confirmed grant are hereby annulled too. The grant issued by the Ukwala Court on 18/8/11 is revoked and the attendant file No.6/11 transferred to this court formally. Each party shall bear their respective costs.
DATED ANDEDELIVERED AT KISUMU THIS 14TH DAY OF MAY 2015
H. K. CHEMITEI
J U D G E
IN THE PRESENCE
….........................COUNSEL FOR OBJECTOR
…..........................COUSNEL FOR RESPONDENT