[2014] KEHC 5942 (KLR)
The court found that the respondent failed to disclose all beneficiaries in the petition for Letters of Administration, as evidenced by the chief's letter listing additional survivors and the absence of their consent. The court held that the grant was obtained fraudulently due to concealment of material facts....
Source-derived case information.
- Citation
- [2014] KEHC 5942 (KLR)
- Parties
- Respondent: Christine Kalondu Makau; Applicant: Teresia Kalekye Kitonga; Interested Party: Kamene Makau; Interested Party: Ndinda Makau
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 189 of 2001
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Succession, Revocation of Grant, Concealment of Material Facts, Beneficiaries Identification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Christine Kalondu Makau
Respondent
Teresia Kalekye Kitonga
Applicant
Kamene Makau
Interested Party
Ndinda Makau
Interested Party
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 all beneficiaries of the estate were disclosed to the court.
- 3 Whether the applicant and her children are beneficiaries to the estate of the deceased.
Ratio Decidendi
The court found that the respondent failed to disclose all beneficiaries in the petition for Letters of Administration, as evidenced by the chief's letter listing additional survivors and the absence of their consent. The court held that the grant was obtained fraudulently due to concealment of material facts. However, the question of whether the applicant and her children are beneficiaries requires further evidence and cannot be determined at this stage. Consequently, the application for revocation of the grant was allowed.
Court Disposition
application allowed
Orders
- The grant of Letters of Administration made to the respondent is revoked.
- Costs in the cause.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 189 OF 2001
IN THE MATTER OF THE ESTATE OF THE LATE MAKALI NZIOKA (DECEASED)
CHRISTINE KALONDU MAKAU ..... PETITIONER/RESPONDENT
VERSUS
TERESIA KALEKYE KITONGA
KAMENE MAKAU INTERESTED PARTIES
NDINDA MAKAU ……
R U L I N G
The summons for revocation dated 4/9/2009 seeks the following orders:-
“(Spent)
THAT pending the hearing hereof an order do issue against the Petitioner/Respondent preventing her from meddling, disposing and/or alienating any movable and immovable property belonging to the estate of the deceased.
THAT the grant of Letters of Administration (intestate) made to the Petitioner/Respondent by this Honourable Court in this cause on the 8th day of August 2001 and confirmed on 31st May 2002 be revoked and/or rectified to reflect all the beneficiaries.
THAT costs of this application be provided for.”
The application is supported by the affidavit of Teresia Kalekye Kitonga sworn on 4/9/2009. However the said Teresia Kalekye Kitonga has since passed on and was on 29/2/12 substituted by her son Alfred Ngao Kitonga.
According to the affidavit in support, the Respondent failed to disclose the other beneficiaries/survivors to the court when she petitioned the court for Letters of Administration. The other beneficiaries/survivors are named as follows:-
“Kamene Makau – Daughter in law – adult
Ndunda Makau – Daughter – adult – married
Grace Makau – Daughter –(deceased) – adult – married
Christine Kalondu Makau – Daughter – adult – married”
The Applicant has described herself as a widow of the late Kitonga Makau who was a son to the deceased, Martha Mule Makau with whom they were blessed with four children namely:-
Ngao Kitonga
Kyalo Kitonga
Mueni Kitonga
Mbithi Kitonga
The Respondent in opposition to the application swore a replying affidavit on 13/4/2010. It is denied that the 1st Applicant was a daughter in law to the deceased, Makau Nzioka. It is also denied that the 1st Applicant bore children to the son of the deceased, Martha Mule Makau and that the 2nd and 3rd Applicant did not object to the confirmation of the grant.
On the date the application was fixed for hearing, the parties opted to proceed by way of written submissions. The Applicants’ submissions were filed but the Respondent’s submissions were not filed although they were aware of the hearing date.
I have considered the application, the reply to the same and the submissions filed. The affidavit in support of the petition for Letters of Administration (Form P & A 5) in paragraph No. 4 disclosed the name of the Respondent as the only survivor. Although the letter from the chief reflected four names of people who survived the deceased, the consent of the other beneficiaries/survivors was also not obtained prior to court being petitioned. Part of the court proceedings on the date the grant was confirmed are missing from the court record. It is therefore not possible to ascertain from the record if the 2nd and 3rd Applicant consented to the distribution of the estate of the deceased.
It is therefore clear that the grant was obtained fraudulently due to the concealment of material facts. Whether the 1st Applicant and her children are beneficiaries to the estate of the deceased can only be resolved by way of evidence. The application is allowed. Costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 6thday of March 2014.
………………………………………
B. THURANIRA JADEN
JUDGE