Gachihi Wang’ombe v James Muriuki Maina & another [2013] KECA 322 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed estate land cannot be transferred before a grant of letters of administration is confirmed, though this land was wrongly sub-divided years earlier.
What this practically means
#Executive summary
#Key legal issues
#Res judicata as between successive applications for revocation of the same grant
A similar application had been made and determined on 3rd October 2003; the second application was properly held to be res judicata and an abuse of court process.
The appellant did not deny that a similar application had been made and a ruling delivered on 3rd October 2003. The plain reading of the ruling was that it was the application, not the succession cause, that was held to be res judicata. No appeal was lodged against the 3rd October 2003 ruling, and the court held that only an appeal could set aside those orders.
Natural justice - whether the appellant was denied a hearing
The appellant was heard; he was represented by counsel and was heard during the proceedings of 15th July 2004 which led to the ruling of 26th July 2004.
The court perused the record of proceedings before the High Court, particularly those of 15th July 2004, and found that the appellant was represented by counsel and was heard. Counsel for the appellant had sought to withdraw the earlier application, but there was nothing to withdraw since it had already been determined and no appeal lodged.
Transfer and sub-division of the estate property before confirmation of the grant
The transfer and sub-division were irregular, but the judge had not considered this issue because it was not pleaded in the application or supporting affidavit; the remedy is that the statutory confirmation procedure be followed.
It was trite law that no transfer or distribution of the deceased's property can take place before a grant is confirmed. It was not disputed that the 1987 grant was never confirmed and the suit property had been sub-divided and transferred. However, the High Court had not considered this issue as it was not pleaded. Invoking the overriding objective, the court directed that the confirmation procedure be followed, with the respondents to apply for confirmation and serve the appellant.
Burden of proving grounds of appeal
The appellant failed to demonstrate the legal procedures the learned judge allegedly failed to follow; the first ground of appeal failed.
Counsel for the appellant did not demonstrate the laid-down legal procedures the judge failed to follow. The court stated the general principle that raising a ground in the memorandum is not enough - the error of law or fact must be proved. Similarly, the fifth ground failed because the ruling disclosed a rationale based on res judicata, laches and abuse of court process.
Legal principles established
#- No transfer or distribution of the property of a deceased person can lawfully take place before the grant of letters of administration is confirmed.
- Raising a ground of appeal is not enough; a party must prove the error of law or fact alleged in the ground.
Court orders
#- 1.The procedure provided in law for confirmation of grant should be followed in Succession Cause No. 105 of 1999
- 2.The respondents should apply in the High Court for confirmation of grant in Succession Cause No. 105 of 1999 with service to be made upon the appellant
- 3.Subject to the foregoing order, the appeal is dismissed with no order as to costs
- On appeal from
- High Court of Kenya at Nyeri
- H.C. Succ. C. No. 105 of 1999
- Jurisdiction invoked
- First appeal against the ruling of the High Court in a succession cause, under the Appellate Jurisdiction Act (Section 3A and 3B invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njoru & another v Equity Bank Limited & another; Ndegwa (Interested Party) (Civil Appeal (Application) 317 of 2018) [2023] KECA 896 (KLR)[2023] KECA 896 (KLR)24 Jul 2023followed
- Njenga & another v Kinyara & 2 others (Civil Appeal (Application) 30 of 2005) [2018] KECA 72 (KLR)[2018] KECA 72 (KLR)23 Nov 2018applied
- Peterson Gichohi & 2 others v Maina Johana Miano alias Joseph Miana Miano [2016] KEELC 1076 (KLR)[2016] KEELC 1076 (KLR)1 Mar 2016
- Wageche Mariyu v Muturi Mariyu [2013] KECA 386 (KLR)[2013] KECA 386 (KLR)7 Feb 2013applied
Cite this brief
#Cite this brief
Caselaw, "Gachihi Wang’ombe v James Muriuki Maina & another [2013] KECA 322 (KLR)", Case Analysis (2013). Civil Appeal 155 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/322/eng@2013-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.