[2014] KEHC 1953 (KLR)
The court found that the dispute over the property BUKIRA/BUHIRINGERA/191 had already been conclusively determined by the District and Provincial Land Disputes Tribunals and affirmed by the Kisumu Chief Magistrate's Court. The application for revocation of grant was deemed a collateral attack on these prior...
Source-derived case information.
- Citation
- [2014] KEHC 1953 (KLR)
- Parties
- Applicant: Paul Marwa Itembe; Respondent: Robi Mwita
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 400 of 2014
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application struck out
- Judges
- DAS Majanja
- Legal Topics
- Revocation of Grant, Trusts in Land, Adjudication of Land, Collateral Attack, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Marwa Itembe
Applicant
Robi Mwita
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration to the respondent should be revoked on grounds of non-disclosure of trust over the property.
- 2 Whether the application for revocation constitutes a collateral attack on a prior land dispute decision.
Ratio Decidendi
The court found that the dispute over the property BUKIRA/BUHIRINGERA/191 had already been conclusively determined by the District and Provincial Land Disputes Tribunals and affirmed by the Kisumu Chief Magistrate's Court. The application for revocation of grant was deemed a collateral attack on these prior decisions, which had settled the property rights between the parties. As such, the court declined to entertain the application for revocation, holding that the applicant's remedy, if any, lay elsewhere and not through the present succession proceedings.
Court Disposition
application struck out
Orders
- The Summons dated 17th September 2014 is struck out.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE HIGH COURT AT MIGORI
SUCCESSION CAUSE NO. 400 OF 2014
IN THE MATTER OF THE
ESTATE OF FESTO MWITA MACHERA (DECEASED)
BETWEEN
PAUL MARWA ITEMBE ………...…..…………….. APPLICANT
AND
ROBI MWITA …………………………………… RESPONDENT
RULING
The deceased in this matter, Festo Mwita Machera,died in 1989. His wife, Robi Mwita, applied for and obtained the grant of letters of administration in Kehancha Succession Cause No. 29 of 2013. The grant was confirmed and certificate issued on 9th July 2014. As result of the confirmation she was became the absolute owner of BUKIRA/ BUHIRINGERA/191 having inherited the half share of the property which was registered in her husband’s name.
The application before the court is a summons for revocation of the grant by Paul Marwa Mwita. He seeks to revoke the grant on the ground that the deceased held the property known as BUKIRA/ BUHIRINGERA/191 in trust for the family which was a matter was not disclosed by the respondent when she filed the succession cause. According to the applicant, the land was adjudicated upon when his father was away in Tanzania and he had left his mother on the suit land to take care of the family interests.
The respondent vehemently denied this fact and averred that the applicant only came onto the land two years ago and forcefully tried to take over the land. As a result the parties litigated over the land in the District Land Dispute Tribunal and the Provincial Land Disputes Tribunal which ruled in the respondent’s favour.
From the decree issued by the court in Kisumu Chief Magistrates’s Court Land Case No. 42 of 2009, Robi Mwita v Paul M. Itembe and Salim W. Itembe, the dispute between the parties that reached the Provincial Land Appeal Committee for Nyanza Province. The Tribunal made an award ordering that Robi Mwita is to enjoy her property without interference from the defendants.
In the circumstances, I hold that since the Land Case dealt with the property rights as between the applicant and respondent, the application for revocation is a collateral attack on the said decision and I therefore decline to entertain the application for revocation.
The remedy which the applicant now seeks must lie elsewhere and I am therefore constrained to strike out the Summons dated 17th September 2014.
There shall be no order as to costs.
DATED and DELIVERED at MIGORI this 11th day of November 2014.
D.S. MAJANJA
JUDGE
Mr Kisera instructed by Omonde Kisera and Company Advocates for the applicant.
Respondent in person.