[2016] KEHC 1342 (KLR)
The court found that the grant and subsequent confirmation were made at the applicant's own request, with full disclosure and supporting affidavits. There was no evidence presented to show that the District Land Registrar had rejected the confirmation or that the respondent's title had been cancelled. The applicant...
Source-derived case information.
- Citation
- [2016] KEHC 1342 (KLR)
- Parties
- Applicant: Washington Omuga Pesa; Respondent: Amos Kings Otieno; Deceased: Charles Odiembo Atito
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Separation Cause 79 of 2016
- Procedural Posture
- Succession Cause / Ruling on Summons for Annulment of Grant
- Outcome
- application dismissed
- Judges
- DO Ohungo
- Legal Topics
- Annulment of Grant, Confirmation of Grant, Title Registration, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Washington Omuga Pesa
Applicant
Amos Kings Otieno
Respondent
Charles Odiembo Atito
Deceased
Procedural Posture
Succession Cause / Ruling on Summons for Annulment of Grant
Legal Issues
- 1 Whether the grant of letters of administration issued to the respondent should be annulled due to alleged defects in the proceedings and confirmation process.
- 2 Whether the transfer and registration of the estate property to the respondent was irregular or invalid.
- 3 Whether there is any actionable irregularity requiring rectification by the court.
Ratio Decidendi
The court found that the grant and subsequent confirmation were made at the applicant's own request, with full disclosure and supporting affidavits. There was no evidence presented to show that the District Land Registrar had rejected the confirmation or that the respondent's title had been cancelled. The applicant failed to demonstrate any defect in the proceedings or any irregularity requiring rectification. The court concluded that there was no merit in the application for annulment of the grant, as no actionable irregularity or prejudice was established.
Court Disposition
application dismissed
Orders
- The application for annulment of the grant is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
SUCCESSION CAUSE NO.79 OF 2016
(Formerly Ndhiwa SRM’s Court Succ. Cause No.48 of 2013)
IN THE MATTER OF THE ESTATE OF:
CHARLES ODIEMBO ATITO ............................................................. DECEASED
AND
WASHINGTON OMUGA PESA ......................................................... APPLICANT
VERSUS
AMOS KINGS OTIENO .................................................................. RESPONDENT
RULING
1. WASHINGTON OMUGA PESA has filed this summons seeking annulment of the grant of letters of administration issued to AMOS KINGS OTIENO (Respondent) on 11th December 2013 on grounds that the proceedings to obtain the grant and the subsequent application for confirmation were defective in substance.
2. In the supporting affidavit, the applicant explains that when Charles Odiembo Atito died on 21st June 1998, a grant for letters of administration was properly made to him. However the Respondent had shown an interest in purchasing the land parcel No. KANYIDOTO/KABURA/462, which constituted the deceased’s estate. The applicant thus sold the land to the respondent after informing the court that he would transfer the land to the respondent during confirmation of grant proceedings. The grant was duly confirmed and the applicant requested that the court do order the land transferred to the Respondent. This was done and the certificate of confirmation transferred the estate to the Respondent.
3. Subsequently the Land Registrar issued a title deed to the Respondent on the basis of the court order whereas the applicant to be registered as proprietor on transmission and transfer by personal representative form did not transfer the title to the respondent.
4. Incidentally there had been a boundary dispute regarding parcel No. Kanyidoto/Kabura/461and 462 and the applicant invited the District Land Registrar who then realized the irregularity in the registration of the respondent and therefore deleted the respondent’s names and entered the name of CHARLES ODIEMBO (Deceased) as the registered proprietor. He says the irregularity was caused by the order and certificate issued by the court, although there is no dispute between him and the respondent.
5. I have perused the application and the documents relating to the process in the lower court. The court did not issue the grant to the respondent suo moto – it was an application by this very applicant who then swore an affidavit dated 2nd December 2013 explaining why he wanted the entire estate transferred to the Respondent. Consequently the grant was confirmed in favour of the Respondent.
6. It is not very clear to me what problem the District Land Surveyor had with the court order as no documents by that officer or from the said office were presented to this court to confirm the issue of concern. Curiously – if the Respondent’s name has been removed from the register, should this really be the applicant’s concern or the respondent who had bought the land and been issued with a grant.
7. The title document filed is in the respondent’s name and I do not see any other document suggesting that the title has been cancelled.
8. I fail to comprehend what it is that I should rectify when there is nothing showing that the District Land Registrar has rejected the confirmation in favour of Respondent.
9. I find no merit in the application and it is dismissed.
Delivered and dated this3rdday of November,2016 at Homa Bay
H.A. OMONDI
JUDGE