[2015] KEHC 3308 (KLR)
The court found that the interested party, having purchased the property for valuable consideration and not being a beneficiary, was directly affected by the order recalling and cancelling the title deed. Since he was not served with the application nor given an opportunity to be heard, the principles of natural...
Source-derived case information.
- Citation
- [2015] KEHC 3308 (KLR)
- Parties
- Objector: Peter Munga Githunguri; Respondent: Geoffrey Ngugi Githunguri; Respondent: Serah Njoki Maina; Interested Party: Stanley Munga Githunguri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 144 of 2001
- Procedural Posture
- Succession Cause / Ruling on Summons to Set Aside Prior Orders
- Outcome
- application allowed
- Judges
- DN Musyoka
- Legal Topics
- Probate and Administration, Setting Aside Orders, Purchaser for Value, Title Deeds, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Munga Githunguri
Objector
Geoffrey Ngugi Githunguri
Respondent
Serah Njoki Maina
Respondent
Stanley Munga Githunguri
Interested Party
Procedural Posture
Succession Cause / Ruling on Summons to Set Aside Prior Orders
Legal Issues
- 1 Whether the interested party, as a purchaser for value, was entitled to be heard before orders affecting his property were made.
- 2 Whether the order recalling and cancelling the title deed for Kiambaa/Kihara/T.213 should be set aside due to lack of service and hearing.
Ratio Decidendi
The court found that the interested party, having purchased the property for valuable consideration and not being a beneficiary, was directly affected by the order recalling and cancelling the title deed. Since he was not served with the application nor given an opportunity to be heard, the principles of natural justice were violated. The application was unopposed, and the factual allegations were uncontested. Consequently, the court set aside the order recalling the title deed for cancellation, upholding the interested party's proprietary rights as a purchaser for value and ensuring due process was followed.
Court Disposition
application allowed
Orders
- The order made on 2nd November 2011 recalling the title deed in respect of Kiambaa/Kihara/T.213 for cancellation is hereby set aside.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 144 OF 2001
IN THE MATTER OF THE ESTATE OF GITHUNGURI THARA (DECEASED)
PETER MUNGA GITHUNGURI ………………OBJECTOR
-VERSUS-
GEOFFREY NGUGI GITHUNGURI……..1ST RESPONDENT
SERAH NJOKI MAINA ………………2ND RESPONDENT
STANLEY MUNGA GITHUNGURI....INTERESTED PARTY
RULING
For determination is a Summons filed herein on 17th June 2013, and taken out under Order 45 rule 1(1) of the Civil Procedure Rule, rule 60, 63(6) and 73 of the Probate and Administration Rules and Sections 92 and 93 of Law of Succession Act. It seeks the setting aside of the orders made on 2nd November 2011 and all the others made consequently thereafter and service of the interested party with the application dated 2nd December 2010. The alternative prayer is that the recall and cancellation of the title deed for Kiambaa/Kihara/T. 213 be set aside.
The application is premised on the grounds set out on the face of it, as well as in the affidavit sworn on 17th June 2013 by the third party, Stanley Munga Githunguri. The general grounds are that the Interested Party purchased the property Kiambaa/Kihara/T-213 for valuable consideration and the proceeds thereof applied to the beneficiaries. He avers that although he is a person directly and personally affected by the order, he was not served with the application dated 2nd December 2010 or heard before the order was made against his property. He avers that he did not acquire the property as a beneficiary but as a purchaser, that the parcel of land therefore does not form part of the estate of the deceased having been validly and lawfully sold to the interested party. He states that the court was misled into making the orders despite there being ample evidence to the contrary in his possession.
A perusal of the file reveals that the application is not opposed. There is no replying affidavit, nor are there grounds of opposition on record. There is evidence on record that the respondents had been duly served with the application dated 17th June 2013. Godfrey Kinyanjui Mbugua served them and swore the affidavit of service filed in the matter on 20th June 2013.
As the allegations of fact made in the application have not been controverted by the respondents, I am inclined to allow the same. I do hereby grant the application dated 17th June 2013 in the terms of the alternative prayer. For avoidance of doubt, the order made on 2nd November 2011 recalling the title deed in respect of Kiambaa/Kihara/T.213 for cancellation is hereby set aside. There shall be no order as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 31ST DAY OF JULY, 2015.
W. MUSYOKA
JUDGE