[2017] KEHC 1969 (KLR)
The court determined that the protest, particularly the claim of gift inter vivos, falls within the jurisdiction of the probate court and cannot be properly resolved through written submissions alone. Given the complexity and the need to establish the deceased's intention, the court held that viva voce evidence is...
Source-derived case information.
- Citation
- [2017] KEHC 1969 (KLR)
- Parties
- Applicant: Edward Miriti M’Imaana (Legal Representative of Naita M’Imaana Baimanene, Deceased); Respondent: Elizabeth Kareachiiwa
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 190 of 2002
- Procedural Posture
- Succession Cause / Ruling on Mode of Hearing of Protest and Confirmation of Grant
- Outcome
- Adjourned for hearing of protest and confirmation of grant by viva voce evidence.
- Judges
- F Gikonyo
- Legal Topics
- Probate and Administration, Revocation of Grant, Gift Inter Vivos
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Miriti M’Imaana (Legal Representative of Naita M’Imaana Baimanene, Deceased)
Applicant
Elizabeth Kareachiiwa
Respondent
Procedural Posture
Succession Cause / Ruling on Mode of Hearing of Protest and Confirmation of Grant
Legal Issues
- 1 Whether the protest regarding the estate should be determined by written submissions or by viva voce evidence.
- 2 Whether the claim of gift inter vivos falls within the jurisdiction of the probate court.
Ratio Decidendi
The court determined that the protest, particularly the claim of gift inter vivos, falls within the jurisdiction of the probate court and cannot be properly resolved through written submissions alone. Given the complexity and the need to establish the deceased's intention, the court held that viva voce evidence is necessary. The court also noted that issues relating to civil case No 414 of 1992 should be addressed in that forum, but the probate court retains jurisdiction over the gift inter vivos claim. Accordingly, the hearing of the protest and confirmation of grant is to proceed by way of oral evidence, and the matter is adjourned for hearing on a priority basis.
Court Disposition
Adjourned for hearing of protest and confirmation of grant by viva voce evidence.
Orders
- The protest shall be canvassed by way of viva voce evidence on a date to be specified by the court.
- Parties to inform the court on the status of land title amalgamation.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 190 OF 2002
In The Matter of the Estate of M’Imaana M’Itabari alias Imaana Baimanene (Deceased)
NAITA M’IMAANA BAIMANENE (DCD) THRO’ EDWARD MIRITI M’IMAANA
(LEGAL REPRESENTATIVE) ……….……...................................... PETITIONER
Versus
ELIZABETH KAREACHIIWA..........................................................PROTESTOR
RULING
Hearing viva voce evidence
[1] On 26th September 2007, the court (Lenaola J. (as he then was) revoked the grant herein. The good judge also ordered that the resultant titles subdivided from Land Title No. Tigania/Kirima-Nchuma/20 to be cancelled and to revert to the original Land Title No. Tigania/Kirima-Nchuma/20. But, it seems that the latter order has not been complied with. Parties should therefore inform this court whether the subdivisions herein were amalgamated into the original title.
[2] More troubling is the nature of this protest.Matters of civil case No 414 of 1992 have been alluded to in a prominent manner. Again, a claim for gift inter vivos to one LAWI MUTUA LIRIA and or the Protestor has also been made by the Protestor. See the Affidavit of Protest filed on 16th June 2014. Now, whereas the Petitioner has argued that matters being raised should be made in civil case No 414 of 1992, the latter claim of gift inter vivos is squarely within the jurisdiction of a probate court. Ordinarily, and given the allegations in this matter, such claims are not capable of being disposed of through written submissions as they require quite intense interrogation by the court in order to establish the intention of the deceased. For that reason, I will not delve into the substance of the protest. Instead, I direct that the protest shall be canvassed by way of viva voce evidence which shall be taken on such date and time as shall be specified by the court. As the case is old, I will assign it a hearing date on the basis of priority. Accordingly, the hearing of the protest and confirmation of grant through the medium I have directed is adjourned. It is so ordered.
Dated, signed and delivered in open court at Meru this 8th day ofNovember 2017
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F. GIKONYO
JUDGE
In the presence of:
M/s. Kiome advocate for Mr. Kioga advocate for objector
B.G. Kariuki advocate for Petitioner –absent
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F. GIKONYO
JUDGE