[2012] KEHC 3166 (KLR)
The court found that the respondents misrepresented the assets of the deceased's estate by including a non-existent parcel of land (E. Bukusu/N. Sang’alo/968) in their application for a grant of letters of administration. The evidence showed that the parcel had been subdivided before the deceased's death, with one...
Source-derived case information.
- Citation
- [2012] KEHC 3166 (KLR)
- Parties
- Respondent: Samson Kiboi Kisembe; Respondent: Andrew Muse Kiboi; Applicant: Wycliffe Mulunda Khaoya; Applicant: Douglas Shikuku Khaoya; Applicant: Benson Wanambisi Khaoya
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 134 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application for revocation of grant allowed
- Judges
- AO Muchelule
- Legal Topics
- Revocation of Grant, Estate Administration, Misrepresentation of Assets
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Kiboi Kisembe
Respondent
Andrew Muse Kiboi
Respondent
Wycliffe Mulunda Khaoya
Applicant
Douglas Shikuku Khaoya
Applicant
Benson Wanambisi Khaoya
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained by misrepresentation of the estate's assets.
- 2 Whether the court was misled regarding the existence and ownership of land parcel E. Bukusu/N. Sang’alo/968.
Ratio Decidendi
The court found that the respondents misrepresented the assets of the deceased's estate by including a non-existent parcel of land (E. Bukusu/N. Sang’alo/968) in their application for a grant of letters of administration. The evidence showed that the parcel had been subdivided before the deceased's death, with one portion registered in the name of a third party and the other in the deceased's name, and the original title closed. As a result, the court was misled into issuing a grant based on incorrect information. The court held that a grant cannot be issued in respect of property that does not exist or does not belong to the deceased, and therefore allowed the application for revocation...
Court Disposition
application for revocation of grant allowed
Orders
- The application dated 12/3/2010 is allowed with costs.
- The grant of letters of administration issued on 21/1/2010 is revoked.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATBUNGOMA
SUCCESSION CAUSE 134 OF 2009
IN THE MATTER OF THE ESTATE OF JOSEPH WAFULA KHAOYA(DECEASED)
1. SAMSON KIBOI KISEMBE......................................................................................1ST PETITIONER
2. ANDREW MUSE KIBOI...........................................................................................2ND PETITIONER
~VRS~
1. WYCLIFFE MULUNDA KHAOYA.............................................................................1ST APPLICANT
2. DOUGLAS SHIKUKU KHAOYA...............................................................................2ND APPLICANT
3. BENSON WANAMBISI KHAOYA........................................................................... 3RD APPLICANT
RULING
The Respondents were on 21/1/2010 given a grant of letters of administration in respect of the estate of the deceased Joseph Wafula Khaoya. This followed a citation for the Applicants to apply for letters to which they did not respond. When the Respondents applied for the grant they indicated the estate of the deceased to be comprised of land parcel no.E. Bukusu/N.Sang’alo/968. In the present application for revocation or annulment of the grant it has been sworn that this suit land had before the deceased’s death been subdivided into E. Bukusu/N. Sang’alo/4368 in the name of Khaoya E.R.S.F Primary School and E. Bukusu/N. Sang’alo/4367 left in the name of the deceased. Title for E. Bukusu/N. Sang’alo/968 was consequently closed. The court was consequently misled into thinking that the title for E. Bukusu/N. Sang’alo/968 existed and that the suit land belonged to the deceased. The Respondent could not petition the court to inherit a non-existent parcel, or a parcel (4368) that did not belong to the deceased.
It is for these reasons that the application dated 12/3/2010 is allowed with costs.
Dated, signed and delivered at Bungoma this 12th day of July 2012.
A.O. MUCHELULE
JUDGE