[2015] KEHC 2084 (KLR)
The court found that the applicants failed to establish fraud or concealment of material facts in the obtaining of the grant. The dispute as to whether the deceased held the land in trust for his brothers, and thus whether the applicants are beneficiaries, is a substantive civil dispute that remains unresolved and...
Source-derived case information.
- Citation
- [2015] KEHC 2084 (KLR)
- Parties
- Respondent: Philip Musembi Wambua; Respondent: Loise Kivaa Wambua; Respondent: Samuel Wambua Kituku; Applicant: Raphael Ndiku Katunga; Applicant: Alice M. Ndolo; Applicant: Dorcas M. Ndolo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 113 of 1998
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- Application for revocation or annulment of grant dismissed. Proceedings stayed. Injunction issued against sale or disposal of suit property. Each party to bear own costs.
- Judges
- BT Jaden
- Legal Topics
- Revocation of Grant, Trust Property, Beneficiary Status, Land Disputes, Civil Procedure Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Musembi Wambua
Respondent
Loise Kivaa Wambua
Respondent
Samuel Wambua Kituku
Respondent
Raphael Ndiku Katunga
Applicant
Alice M. Ndolo
Applicant
Dorcas M. Ndolo
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the confirmed grant should be revoked or annulled on grounds of fraud, concealment of material facts, or defective proceedings.
- 2 Whether the deceased held the subject land in trust for himself and his late brothers, making the applicants beneficiaries.
- 3 Whether procedural technicalities in affidavits and substitution of parties affect the validity of the application.
Ratio Decidendi
The court found that the applicants failed to establish fraud or concealment of material facts in the obtaining of the grant. The dispute as to whether the deceased held the land in trust for his brothers, and thus whether the applicants are beneficiaries, is a substantive civil dispute that remains unresolved and is the subject of ongoing proceedings. The technical defects in affidavits and substitution of parties do not go to the substance and can be regularized. Given the pending civil dispute and lack of clear evidence of fraud or concealment, there is no basis to revoke or annul the grant. However, to preserve the subject property pending resolution of the civil dispute, the court...
Court Disposition
Application for revocation or annulment of grant dismissed. Proceedings stayed. Injunction issued against sale or disposal of suit property. Each party to bear own costs.
Orders
- The application for revocation or annulment of the grant is dismissed.
- There shall be no sale, disposal, or other transactions relating to the suit property until the civil disputes are resolved.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 113 OF 1998
IN THE MATTER OF THE ESTATE OF SAKAYO WAMBUA NDOLO (DECEASED)
PHILIP MUSEMBI WAMBUA
LOISE KIVAA WAMBUA
SAMUEL WAMBUA KITUKU........PETITIONERS/RESPONDENTS
VERSUS
RAPHAEL NDIKU KATUNGA
ALICE M. NDOLO
DORCAS M. NDOLO ..........................OBJECTORS/APPLICANTS
RULING
1. The application dated 25th May, 2007 seeks orders that the grant confirmed on 16th May, 2001 be revoked or annulled. The grounds are that the same was obtained fraudulently by the making of false statements or by the concealment of material facts and through defective proceedings.
2. The application is supported by the affidavit in support sworn by one John Mutua Nthatu, a son to the 2nd Objector and by the further affidavits sworn by Raphael Ndiku Katunga the 1st Objector and the further affidavit sworn by Dorcas M. Ndolo the 3rd Objector.
3. The thrust of the said affidavit evidence is that the land the subject matter of these proceedings was held by the deceased in trust for himself and two of his late brothers, Alphonce Katunga and the late Nathan Muema Ndolo. The Applicants claim to be beneficiaries in the estate of the late Alphonce Katunga and the late Nathan Muema Ndolo. To support their claim the Applicants have exhibited the proceedings of the Makueni Land Disputes Tribunal, Tulimani Division Case No. 37 of 2006 (annexture “DMN1”).
4. The application is opposed. According to the replying affidavit sworn by the Respondents, no material facts were concealed from the court as the Applicants are not beneficiaries in the estate of the late Sakayo Wambua Ndolo, the deceased herein. It is further deponed that the grant was obtained regularly without any objections.That following the confirmation of the grant, the land in question was subdivided and sold to third parties.
5. The application was canvassed by way of written submissions which I have duly considered.
6. Both parties have raised issues of technicalities. The Respondents have contended that the affidavit in support of the application and the further affidavits are defective in that the deponent of the affidavit in support is not the Applicant and that the further affidavits were filed without the leave of the court. On the other hand, the Applicants have asserted that Loise Kivaa Wambua was irregularly substituted as the 2nd Petitioner to replace her late husband, Jonathan Kivaa. In my view, the technicalities of procedure raised do not go into matters of substance and can be regularized if need be. Be as it may, this court is enjoined by Article 159 of the Constitution to administer justice without undue regard to technicalities of procedure.
7. Going to the merits of the case, it is not in dispute that the property in question is in the name of the deceased. It is also clear from the proceedings from the Land Disputes Tribunal that there has been a dispute over whether the property belonged to the deceased herein alone or whether he held it in trust. The Land Disputes Tribunal’s decision agreed with the Applicants and made orders for the said land to be subdivided between the three brothers. The Land Disputes Tribunal’s decision was adopted as a decision of the court. According to the Respondents’ submissions, the Land Disputes Tribunal’s decision was made after the confirmation of the grant herein and without jurisdiction and is the subject of a Judicial Review in Miscellaneous Application, Machakos High Court No. 24 of 2008 which is pending determination.
8. From the foregoing, it has been established that the parties have a civil dispute which is yet to be resolved. There is therefore no clear case of fraud or concealment of material facts when the grant was obtained made out. The issue whether the Applicants are dependants of the deceased or not is hinged on the question of the trust alluded to.
9. In the premises, I find no reason to revoke or annul the grant. However, I note that there are unsubstantiated averments that the property the subject of these proceedings has been sold. Due to the peculiar circumstances of this case, I stay the proceedings and make orders that there should be no sale or disposal or the carrying out of any other transactions relating to the suit property until the parties resolve the civil disputes related to the said land.
Each party to meet own costs.
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B. THURANIRA JADEN
Dated and delivered at Machakos this 7th day of October, 2015
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B. THURANIRA JADEN
JUDGE