[2011] KEHC 2784 (KLR)
The court found that the applicant's claim to the disputed parcel of land was not frivolous and that she had established a prima facie interest in the property. Given the substantive proceedings for revocation of grant, and the conflicting claims regarding entitlement to the estate, the court determined that it was...
Source-derived case information.
- Citation
- [2011] KEHC 2784 (KLR)
- Parties
- Applicant: Mwanahawa Mushiere Saidi; Respondent: Pauline Ogany Ambululi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 418 of 2001
- Procedural Posture
- Succession Cause / Interlocutory Application for Inhibition Pending Summons for Revocation
- Outcome
- Interlocutory inhibition order granted; suit land preserved pending hearing of revocation application.
- Legal Topics
- Succession Disputes, Revocation of Grant, Land Inheritance, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwanahawa Mushiere Saidi
Applicant
Pauline Ogany Ambululi
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Inhibition Pending Summons for Revocation
Legal Issues
- 1 Whether there is a prima facie case to preserve land parcel Butsotso/Shibeye/4972 pending determination of the summons for revocation of grant.
- 2 Whether the applicant has a discernible interest in the estate of the deceased that warrants preservation of the property.
Ratio Decidendi
The court found that the applicant's claim to the disputed parcel of land was not frivolous and that she had established a prima facie interest in the property. Given the substantive proceedings for revocation of grant, and the conflicting claims regarding entitlement to the estate, the court determined that it was in the interests of justice to preserve the status quo by inhibiting dealings with the land until the revocation application could be heard and determined on its merits. The court emphasized the need to investigate the applicant's interest in light of the issues raised by the respondent and to ensure that any redistribution of the estate would take into account all lawful claims.
Court Disposition
Interlocutory inhibition order granted; suit land preserved pending hearing of revocation application.
Orders
- An inhibition is issued as sought at prayer (i) of the application dated 18.5.2010, preserving land parcel Butsotso/Shibeye/4972 and any resultant sub-divisions.
- Directions to be taken regarding the remaining prayers of the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 418 OF 2001
IN THE MATTER OF THE ESTATE OF SAIDI MANGALA JUMA– DECEASED
BETWEEN
MWANAHAWA MUSHIERE SAIDI ................................................................................PETITIONER
VERSUS
PAULINE OGANY AMBULULI ..........................................................................................OBJECTOR
RULING
1. I have read the Application dated 18. 5.2010 and at the moment, all I am required to do is to see whether there is good reason to preserve the land parcel known as Butsotso/Shibeye/4972and any resultant sub-division thereof, pending the hearing of the Summons for Revocation premised on S. 76 of the Law of Succession.
2. From the supporting Affidavit of Pauline Agany Ambululi, it is her case that she was the widow of one Shem Ambululi Makunda (deceased). That Shem was a brother of Saidi Mangala Juma who is the deceased in this case.
3. Further, that the two brothers were parties to H.C.C.C. No. 457/1994 (O.S.) where Judgment was entered in favour of Shem and land parcel No. Butsotso/Shibeye/642 was to be sub-divided and mutations were done to create parcels Nos. Butsotso/Shibeye/4971 and 4972 but Saidi died before transfer of parcel No. 4972 to Shem.
4. That when the present cause was filed, all the above information was placed before court and parcel No. 4972 was transmitted to Mohamed Mwanda Muhanya and Rukia Khayesi in a bid to defeat the claim by Shem and now his legal representative, Pauline, aforesaid.
5. In her Replying Affidavit sworn on 22. 10. 2010, Mwanahawa Mushiere Saidi deponed that Shem was her husband’s nephew and had no lawful claim to Saidi’s estate. Further, that the Judgment in HCCC 457/1994, was suspect as it was delivered after Saidi had long died. In any event that suit had long abated and no execution pursuant to it could be undertaken.
6. On my part, and since the substantive proceeding is the Summons for Revocation, I am satisfied that the Applicant’s claim is not idle and prima facie, she may well have a discernible interest in the parcel of land, No. 1492. That interest needs to be investigated in view of the issues raised by the Respondent and to see whether there is any lawful reason to revoke the grant and take that interest into account when redistributing the estate, should that action be necessary.
7. It is therefore in the interests of justice that the suit land be maintained in its current status until the Revocation proceedings are heard and determined on their merits.
8. I will issue the inhibition as is sought at prayer (i) of the Application dated 18. 5.2010 and in the meantime directions should be taken as regards prayers (ii), (iii), (iv), (v), (vi) and (viii) of that Application.
9. Each party will in the meantime bear its own costs.
10. Orders accordingly.
Delivered, Dated and Signed at Kakamega this 14th day of April, 2011.
ISAAC LENAOLA
J U D G E