[2012] KEHC 4754 (KLR)
The court found that both the applicants and the respondent were step-grandsons of the deceased and, in principle, should be treated equally in the distribution of the estate. However, the respondent's claim that the deceased had bequeathed her estate to him during her lifetime was unchallenged by the applicants and...
Source-derived case information.
- Citation
- [2012] KEHC 4754 (KLR)
- Parties
- Applicant: Charles Mathangani Wamahiu; Applicant: David Munga Wamahiu; Respondent: Peter Wachira Wamahiu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 548 of 2005
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- summons for revocation of grant dismissed
- Legal Topics
- Revocation of Grant, Succession Procedure, Concealment of Material Facts, Distribution of Estate, Intervivos Gift
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mathangani Wamahiu
Applicant
David Munga Wamahiu
Applicant
Peter Wachira Wamahiu
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by concealment of material facts.
- 2 Whether the applicants, as step-grandsons, are entitled to a share of the deceased's estate.
- 3 Whether the respondent was under an obligation to inform the applicants of the succession proceedings.
Ratio Decidendi
The court found that both the applicants and the respondent were step-grandsons of the deceased and, in principle, should be treated equally in the distribution of the estate. However, the respondent's claim that the deceased had bequeathed her estate to him during her lifetime was unchallenged by the applicants and supported by affidavit evidence. As such, the court held that the respondent was under no obligation to inform the applicants or his siblings of the succession proceedings. The applicants failed to establish that the grant was obtained fraudulently or by concealment of material facts. Consequently, the summons for revocation of the grant lacked merit and was dismissed.
Court Disposition
summons for revocation of grant dismissed
Orders
- The summons for revocation of grant dated 22nd February, 2007 is dismissed.
- Each party shall bear his own costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO.548 OF 2005
IN THE MATTER OF THE ESTATE OF KIRIGO w/o MUNGA
alias KIRIGO MUNGA – DECEASED
CHARLES MATHANGANI WAMAHIU
DAVID MUNGA WAMAHIU…………………………….……………………APPLICANTS
versus
PETER WACHIRA WAMAHIU……………...............………………………………RESPONDENTS
R U L I N G
A grant of Letters of Administration Intestate in respect of the Estate of Kirigo w/o Munga alias Kirigo Munga – deceased was given to Peter Wachira Wamahiu on 14th March 2006. By the summons dated 18th September 2006, Peter Wachira Wamahiu, applied for the grant to be confirmed. On 23rd October, 2006 the grant was confirmed whereof the parcel of land known as L.R. No. Aguthi/Muruguru/397 and the shares held in A/C No.00284124096 with Nyeri Farmers Sacco, were transmitted to Peter Wachira Wamahiu. When Charles Mathangani Wamahiu and David Munga Wamahiu, hereinafter referred to as the Applicants learnt of what had happened, they took out the summons dated 22nd February 2007, in which they applied for the confirmed grant to be revoked. The summons is supported by the affidavit of Charles Mathangani Wamahiu. Peter Wachira Wamahiu hereinafter referred to as the ‘Respondent’ opposed the summons by filing a replying affidavit he swore on 6th May 2007, and a further affidavit sworn on 15th July, 2011. When the summons came up for hearing interpartes on 13th April, 2011, learned counsels appearing in the cause recorded a Consent Order in which the parties agreed to have the summons determined by affidavit evidence and by written submissions.
I have considered the material placed before this court plus the written submissions. The Applicants alleged that the Respondent obtained the grant fraudulently by concealment from the Court of something material to the case. It is argued that the Respondent represented himself as the only grandson of the deceased yet he knew the applicants were the other surviving grandsons. The Applicants proposed for the deceased’s Estate to be shared equally between the trio. The Applicants admit that the estate has already been fully administered in that the estate assets have already been transmitted to the Respondent.
The Respondent on the other hand, denied concealing anything material from the Court. The Respondent avers that the Applicants were the deceased’s step grandsons hence they had no right to claim from the deceased’s estate. He further averred that the deceased had actually bequeath her estate to him during her lifetime in appreciation of the care he offered his grandmother. What is clear in my mind is that both the Respondent and the Applicants are step-grandsons of the deceased. When it comes to sharing the deceased’s estate, the trio should be treated equally. The Respondent has however, put forward a very strong case which is to the effect that the deceased bequeath intervivos to him. That assertion has not been challenged by the Applicants. That contention is supported by the affidavit of Gachucha Njama and Moses sworn on 15th July 2011. In the circumstances, the Respondent was under no obligation to inform the Applicants nor any of his siblings in the succession proceedings. In the end, I see no merit in the summons for revocation of grant dated 22nd February, 2007. The same is ordered dismissed. Since the cause involves members of the same family, I direct that each party meets his own costs.
Dated and delivered this 27th day of April 2012.
…………………………………………………………
J. K. SERGON
JUDGE
In open court in the presence of Mr. Kindinda for the Applicant and Mr. Wachira for the Respondent.