[2019] KEHC 3282 (KLR)
The court held that before determining the application for revocation or annulment of the grant, all persons alleged to have purchased portions of the estate must be served and given an opportunity to be heard. The court found that questions of fact regarding the applicant's participation in the prior succession...
Source-derived case information.
- Citation
- [2019] KEHC 3282 (KLR)
- Parties
- Applicant: Sokome Chesang; Respondent: Samson Kipyegen; Respondent: Dominic Kimuge
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 4 of 2019
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Service and Hearing of Viva Voce Evidence Prior to Determination of Revocation of Grant
- Outcome
- Determination of the application for revocation of grant deferred pending service on alleged purchasers and hearing of viva voce evidence.
- Judges
- EM Muriithi
- Legal Topics
- Succession Proceedings, Revocation of Grant, Service of Process, Hearing of Viva Voce Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sokome Chesang
Applicant
Samson Kipyegen
Respondent
Dominic Kimuge
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Service and Hearing of Viva Voce Evidence Prior to Determination of Revocation of Grant
Legal Issues
- 1 Whether the applicant participated in the prior succession cause and consented to the confirmation of grant.
- 2 Whether the administrator had executed documents to facilitate distribution of the estate as per the confirmed grant before his death.
- 3 Whether the estate property was distributed in accordance with the confirmed grant.
Ratio Decidendi
The court held that before determining the application for revocation or annulment of the grant, all persons alleged to have purchased portions of the estate must be served and given an opportunity to be heard. The court found that questions of fact regarding the applicant's participation in the prior succession cause, the distribution of the estate, and alleged intermeddling by the respondents require viva voce evidence. Accordingly, the court deferred the determination of the application for revocation of grant until after service on the alleged purchasers and a hearing on the factual issues.
Court Disposition
Determination of the application for revocation of grant deferred pending service on alleged purchasers and hearing of viva voce evidence.
Orders
- Alleged purchasers of portions of the estate to be served with the application for revocation of grant.
- Hearing of viva voce evidence on the listed questions of fact to be conducted after service.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
PROBATE AND ADMINISTRATION MISC. SUCC. CAUSE NO. 4 OF 2019
IN THE MATTER OF THE ESTATE OF CHEWETICH CHESARO (DECEASED)
SOKOME CHESANG...................................................APPLICANT
VERSUS
SAMSON KIPYEGEN......................................1ST RESPONDENT
DOMINIC KIMUGE........................................2ND RESPONDENT
RULING
1. Rules 44 (3) and (4) of Probate and Administration Rules provide as follows:
“(3) The summons and affidavit shall without delay be placed by the registrar before the High Court on notice in Form 70 to the applicant for the giving of directions as to what persons (if any) shall be served by the applicant with a copy of the summons and affidavit and as to the manner of effecting service; and the applicant, upon the giving of directions, shall serve each of the persons so directed to be served with a notice in Form 68, and every person so served may file an affidavit stating whether he supports or opposes the application and his grounds therefor.
(4) When the persons (if any) so directed to be served (or such of them as the applicant has been able to serve) have been served with a copy of the proceedings, the matter shall be placed before the High Court on notice by the Court to the applicant and to every person so served, and the Court may either proceed to determine the application or make such other order as it sees fit.”
2. Pursuant to Rule 44 (3) and (4) of the Probate and Administration Rules, set out above, the Court considers that the persons named as purchasers of portions of the Estate ought to be served and the determination of questions of fact arising herein require viva voce evidence, as follows:
Questions:
1. Whether the applicant participated in Succession Cause KBT P & A No. 5 of 2014 and even executed the consent for confirmation of grant and was present in Court during the confirmation of Grant and previously when the Court visited the site of the Estate property to confirm the beacons marking each beneficiary’s portion.
2. Whether the Administrator had at the time of his death executed some of the documents to facilitate the distribution of the Estate in accordance with the Confirmed Grant.
3. Whether the Estate property Baringo/Kewamoi/ “A”/107 was distributed in accordance with the confirmed Grant.
4. Whether the Applicant is in possession and occupation of her portion as per the Confirmed Grant in terms of acreage.
5. Whether the Respondents have intermeddled with the estate by sale of several parts to named persons as follows:
1. Pius Kamoo Ossen
2. Raymond Yator
3. Andrew Kipchumba Chebotee
4. Jonathan Chemwetich Kiplagat
3. The said alleged purchasers’ interest in the suit property calls for the grant of opportunity to be heard before a determination on the issue of revocation/annulment of grant sought in the matter.
4. The determination of the application for revocation of grant shall, therefore, be deferred until after the said alleged purchasers have been served with the application and upon hearing viva voce of the questions of fact listed above.
5. Costs in the Cause.
Order accordingly
DATED AND DELIVERED THIS 29TH DAY OF OCTOBER 2019.
EDWARD M. MURIITHI
JUDGE
Appearance
M/S Mwaita & Co. Advocates for the Applicant.
M/S Chebii & Co. Advocates for the Respondents.