[2017] KEHC 2031 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO.236 OF 2014

In the Matter of the Estate of Japtheth Kiruki (Deceased)

CHARLES MUKONU KIRUKI…………………………………………………….. RESPONDENT

-VERSUS-

CELINA NYAI KIRUKI………………………………………………………………...APPLICANT

RULING

[1] By Summons for Revocation/Annulment of Grant dated 11th December 2015 the Applicant seeks Revocation of Grant issued to Charles Mukonu (the Respondent herein) on 4th September 2014, on the following grounds:

1. That the proceedings to obtain the Grant were defective in substance.

2. That the Grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

3. Thathe Grant was obtained by means of untrue allegations of a fact essential in point of law to justify the Grant notwithstanding that the allegation was made in ignorance or inadvertently.

The summons is expressed to be brought pursuant to Section 76 (b) (c) Rule 44 (1) of the Law of Succession Act CAP 160 of the Laws of Kenya.

[2] Briefly, the deceased died on 31st January 2013 and a Grant of Letters of Administration was issued to the Respondent by the honourable court on 4th September 2014. Now the Applicant, the window of the deceased says that she is entitled in law to administer the estate of her deceased husband. And that the Petitioner who is her step son, is not capable of administering the estate. The Applicant further contended that immediately after the death of her husband, the Petitioner and his siblings started to create problems and to issue threats to evict her from her house. They eventually declined to sign papers that she had prepared for purposes of applying for a grant. Instead, they filed a citation and served her. She promptly appointed legal counsel to deal with the citation.

[3] The Application was opposed via a Replying Affidavit filed in court on 16th November 2016, where it was deposed inter alia that this Petition was filed after a citation in which the Applicant had refused to file the Succession Cause and that they had never issued threats to the Applicant.

Submissions

[4] When the matter came up for hearing on 14th December 2016, it was agreed that the same be canvassed by way of written submissions. Following these directions parties filed submissions. The Applicant submitted that the deceased died on 31st March 2013 and hardly three months later, had the Petitioner and his siblings started the process of filing for the succession. And before she could mourn her husband, she was served with a citation. Nonetheless, she entered an appearance except no notice was ever served on her suggesting the court had allowed the Petitioner to file for full Grant. As the legal wife of the deceased she ranked in priority to the Petitioner in administering the estate. She therefore sought for revocation of the grant herein.

[5] It was submitted for the Petitioner that since the death of the deceased the Applicant had been receiving the deceased’s tea payout amounting to Kshs 2,000,000 per year and that she had refused to support the deceased’s son Jack Gitonga who was mentally challenged. They argued that the Applicant has been cultivating the deceased’s arable land alone as well as collecting rent from the plot at Makutano market. For that reason they seek the court to order her to deposit the income from the estate on court. Strangely, the Petitioner concluded his submissions thus:-

‘’We accordingly, pray that the application be allowed’’

Nevertheless, I think that submission is careless but a venial mistake.

DETERMINATION

[6] I have carefully considered this Application and the rival submissions by the parties. These facts are not in dispute: (1) that the Applicant is the widow of the deceased; and (2) the Petitioner is son of the deceased and step-son of the Applicant. The Applicant therefore ranks in priority in so far as applying for letters of administration of the estate herein is concerned. But that notwithstanding, has the threshold in law been satisfied to cause the court revoke this grant? Section 76 of the Law of Succession Act CAP 160 of the Laws of Kenya provides the circumstances under which a Grant can be revoked as follows:

76 Revocation or annulment of grant

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—

(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or

(ii) to proceed diligently with the administration of the estate; or

(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) that the grant has become useless and inoperative through subsequent circumstances.

[7] Applying the above test on the facts of the case, I should be asking whether:-

(a) The proceedings to obtain the grant were defective in substance; or

(b) The grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; or

(c) The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently

[8] Whereas parties spoke about citation having been filed, those proceedings were not annexed to any of the affidavits of the parties. That aside, the Applicant stated that after entry of appearance, she was never served with any order allowing the Petitioner to file this cause. The averment has not been controverted. Of great significance is that the whole process of citation is prescribed in great detail in PART VI of the Probate and Administration Rules and more specifically places an obligation upon the citor to serve the person cited with notice of any application for a grant to himself. Nothing shows this was done.

[9] I have also perused the record and the following emerges. The Affidavit in support of Petition for Letters of Administration Intestate filed in court by the Petitioner on 30th May 2014 does not list the Applicant as the widow the deceased or beneficiary of the estate. It should be known that, the fact that a cause has been commenced after citation does not remove the necessity for the Petitioner to disclose the identity of all persons beneficially entitled to the estate. Failure to list the Applicant as the widow and beneficiary of the estate is a fatal mistake; indeed it was a major concealment of material fact for which a grant will be revoked. In addition, in the absence of an order allowing the citor to file this cause and in the absence of notice to the citee, this grant is a perfect candidate for revocation. A better cast of the potency of such facts to cause a revocation of grant was aptly stated in the case of SAMUEL WAFULA WASIKE vs. HUDSON SIMIYU WAFULA CA NO.161 OF 1993) (Kwach, Omolo and Tunoi JJA) that:-

“A grant obtained on the strength of false claims, without obtaining the consent of persons who had prior right to the grant and on the basis of facts concealed from the court, is liable to revocation.”

[10] In the upshot, I find that the Applicant has made a sufficient cause for Revocation of Grant made to the Petitioner on the basis that:-

(a) The proceedings to obtain the grant were defective in substance; or

(b) The grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; or

(c) The grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently

Accordingly, the grant made to the Petitioner herein on 4th September 2014 is hereby revoked. As no estate should remain without an administrator, in exercise of my final discretion under section 66 of the Law of Succession Act, I appoint the Applicant and the Petitioner to be joint administrators of the estate of the deceased. Accordingly, a grant shall be issued in their names. The Applicant shall apply for confirmation of grant and serve the application thereto upon the Petitioner and all beneficiaries within 21 days of today. Upon service, the Petitioner or any beneficiary or other interested person may, within 21 days, file affidavit on the mode of distribution of the estate. By way of further directions, I order the Applicant shall within 30 days file in court and serve an account of the income of the estate from the date of the death of the deceased to date. In light of these directions, this matter shall be mentioned on a date agreed amongst the parties. This being a Succession matter, there will be no order as to costs. It is so ordered.

Dated, signed and delivered in open court at Meru this 6th day of November 2017

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F. GIKONYO

JUDGE

In the presence of:

Ndumbi advocate for M/s. Mwangi for Objector

Gichuki for B.G. Kariuki for petitioner

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F. GIKONYO

JUDGE