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ELCDismissedPetition dated 8th October 2012· [2020] KEELC 1288 (KLR)

Davide Graemmo & 2 others v Melina Bpra & 5 others [2020] KEELC 1288 (KLR)

Environment and Land Court
25 September 2020
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a Petition filed on 8th October 2012, Davide, Daniele and Sara Gremmo, children of the late Giovanni Gremmo, sought declarations that transfers of half shares in Gede/Mijamboni/162 and Malindi Portion No. 1757 to the 1st Respondent were null and void for fraud, together with rectification of the registers to reinstate their father's name. They alleged the transfers, purportedly executed on 19th May 2009 before the 6th Respondent law firm, were forgeries effected after the deceased's death. Musinga & Company Advocates (6th Respondent) raised a Notice of Preliminary Objection dated 31st May 2019 contending that the Petitioners lacked locus standi because the grant to their mother was revoked, that the court lacked jurisdiction, and that no constitutional issues were raised, and sought summary striking out of the Petition. Applying the Mukisa Biscuit test, J.O. Olola J held that the Petitioners, as beneficiaries of their father's estate, had sufficient interest in the properties capable of protection under Article 40 of the Constitution and a right of access under Article 22(1). The court further held that the succession proceedings in Malindi High Court Succession Cause No. 78 of 2010 would not of themselves resolve ownership of the disputed parcels, and that the questions of fraud and forgery required evidence. The Preliminary Objection was dismissed with costs to the Petitioners, allowing the Petition to proceed to full trial.

Key legal issues

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01

Whether the Petitioners had locus standi to institute the Petition

Holding

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.

Reasoning

Although the grant to their mother was revoked and they may not be sole beneficiaries, the properties admittedly belonged to their father at death.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.

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02

Whether a preliminary objection is a proper vehicle for the objections raised

Holding

The objections could not dispose of the suit on a pure point of law and the Preliminary Objection lacked merit.

Reasoning

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.

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03

Whether the succession proceedings would resolve ownership of the suit properties

Holding

The court held that the determination of the succession matter would not on its own resolve ownership of the disputed parcels.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The Preliminary Objection dated 31st May 2019 is dismissed
  2. 2.Costs of the Preliminary Objection to the Petitioners

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 22(1)

Cases cited (1)

  • Mukisa Biscuit Manufacturing Company Ltd – vs- West End Distributors
    (1969) EA 696
Jurisdiction invoked
Article 22(1) and Article 40 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.