Davide Graemmo & 2 others v Melina Bpra & 5 others [2020] KEELC 1288 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners had locus standi to institute the Petition
The Petitioners, as beneficiaries of the deceased's estate, have sufficient interest in the suit properties capable of protection under Article 40 of the Constitution.
Although the grant to their mother was revoked and they may not be sole beneficiaries, the properties admittedly belonged to their father at death. Their beneficial interest engages Article 40 property rights, and Article 22(1) entitles them to bring proceedings alleging breach of such rights. The succession cause's outcome would not itself resolve land ownership.
Whether a preliminary objection is a proper vehicle for the objections raised
The objections could not dispose of the suit on a pure point of law and the Preliminary Objection lacked merit.
Applying Mukisa Biscuit, a preliminary objection must be a pure point of law arguable on assumed pleaded facts. The questions of fraud, forgery and whether the deceased transferred the shares required ascertainment of facts, so they could not properly be determined by way of preliminary objection.
Whether the succession proceedings would resolve ownership of the suit properties
The court held that the determination of the succession matter would not on its own resolve ownership of the disputed parcels.
The pleadings and the 21st February 2019 decision in Malindi High Court Succession Cause No. 78 of 2010 were not availed to the court. Moreover, whether the deceased had during his lifetime transferred the half shares to the 1st Respondent, and whether her status as common law wife mattered, were questions requiring evidence at trial.
Legal principles established
#- Beneficiaries of a deceased person's estate have a sufficient interest in properties belonging to the deceased capable of protection as rights to property under Article 40 of the Constitution.
- Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, or is threatened.
Court orders
#- 1.The Preliminary Objection dated 31st May 2019 is dismissed
- 2.Costs of the Preliminary Objection to the Petitioners
- Jurisdiction invoked
- Article 22(1) and Article 40 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Davide Graemmo & 2 others v Melina Bpra & 5 others [2020] KEELC 1288 (KLR)", Case Analysis (2020). Petition dated 8th October 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1288/eng@2020-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.