[2011] KEHC 125 (KLR)
The court found that Robert Tanui, as administrator of the estate of Sawe Busienei, had demonstrated on a balance of probabilities that BLOCK 13 BONDENI/312 was allotted to Sawe Busienei and not to Mary Chemarus Tele. The respondents failed to provide any evidence of proprietary interest by Mary Chemarus Tele in the...
Source-derived case information.
- Citation
- [2011] KEHC 125 (KLR)
- Parties
- Applicant: Robert Tanui; Respondent: Raphael Arap Chepkwony; Respondent: Chepkemoi Angeline
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 237 of 2008
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation or Rectification of Grant
- Outcome
- application granted; grant rectified to exclude BLOCK 13 BONDENI/312
- Judges
- SP Ouko
- Legal Topics
- Grant Revocation, Rectification of Grant, Estate Administration, Proprietary Interest, Land Allocation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Tanui
Applicant
Raphael Arap Chepkwony
Respondent
Chepkemoi Angeline
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation or Rectification of Grant
Legal Issues
- 1 Whether BLOCK 13 BONDENI/312 was wrongfully included in the estate of Mary Chemarus Tele.
- 2 Whether the grant should be revoked or rectified to exclude BLOCK 13 BONDENI/312.
Ratio Decidendi
The court found that Robert Tanui, as administrator of the estate of Sawe Busienei, had demonstrated on a balance of probabilities that BLOCK 13 BONDENI/312 was allotted to Sawe Busienei and not to Mary Chemarus Tele. The respondents failed to provide any evidence of proprietary interest by Mary Chemarus Tele in the property, relying solely on a chief's letter indicating residence but not ownership. Consequently, the inclusion of BLOCK 13 BONDENI/312 in the estate of Mary Chemarus Tele was wrongful. The court therefore ordered rectification of the grant to exclude the disputed property.
Court Disposition
application granted; grant rectified to exclude BLOCK 13 BONDENI/312
Orders
- The Certificate of Confirmation of the grant is to be rectified by excluding BLOCK 13 BONDENI/312.
- The administrators of the late Mary Chemarus Tele shall surrender the certificate issued on 21st September, 2010 within fourteen (14) days from the date of this order.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE NO.237 OF 2008
IN THE MATTER OF THE ESTATE OF MARY CHEMARUS TELE (DECEASED)
ROBERT TANUI……………………………………………………..APPLICANT
VERSUS
RAPHAEL ARAP CHEPKWONY……………………….….1ST RESPONDENT
CHEPKEMOI ANGELINE…………………..……………….2ND RESPONDENT
RULING
This cause was brought by Chepkemoi Angeline and Raphael Arap Chepkwony in respect of the estate of the late Mary Chemarus Tele. The grant was issued and subsequently confirmed in their favour on 21st September, 2010. Listed as part of the estate of the late Mary Chemarus Tele are two parcels of land described as BLOCK 13 BONDENI/312 and 253.
The applicant (Robert Tanui) in the instant summons for revocation is claiming that BLOCK 13 BONDENI/312 belongs to the late Sawe Busienei and that it was wrongful included as part of the estate of Mary Chemarus Tele. He seeks that, for that reason, the grant be revoked or in the alternative that the grant be rectified to exclude BLOCK 13 BONDENI/312.
The application was duly served upon the administrators of the estate of Mary Chemarus Tele, i.e. Raphael Arap Chepkwony and Chepkemoi Angeline, who have not responded to the application.
The applicant, Robert Tanui has demonstrated that he is the administrator of the late Sawe Busienei by exhibiting a grant of letters of administration intestate issued to him and Charles Tanui in Nakuru High Court Succession Cause No.123 of 2009. He has also demonstrated on a balance of probability that the late Sawe Busienei had documents showing that BLOCK 13 BONDENI/312 formerly PLOT NO.50 was allotted to him.
In contrast, the administrators of the estate of Mary Chemarus Tele have not demonstrated the proprietary interest of the said Mary Chemarus Tele in the property. Indeed, at the time they petitioned for the grant, apart from the chief’s letter that the late Mary Chemarus Tele lived in Bondeni Estate Block 50, there was no other evidence of ownership of the said property.
For the reasons stated, I grant the application and order that the Certificate of Confirmation of the grant be rectified by excluding BLOCK 13 BONDENI/312. The administrators of the late Mary Chemarus Tele to surrender the certificate issued on 21st September, 2010 for this purpose within fourteen (14) days from the date of this order.
Dated, Signed and Delivered at Nakuru this 25th day of November, 2011.
W. OUKO
JUDGE