[2013] KEHC 2424 (KLR)
The court found that the applicant failed to establish any fraud or concealment of material facts by the respondent in obtaining the grant. The sale agreements relied upon by the applicant were executed after the grant had already been confirmed and the property transmitted to the respondent. The vendor, Francis...
Source-derived case information.
- Citation
- [2013] KEHC 2424 (KLR)
- Parties
- Applicant: Daniel Mbuthia Njimu; Respondent: Grace Wacera Ndereba
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 395 of 2005
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- summons for revocation of grant dismissed with costs to the respondent
- Judges
- JK Sergon
- Legal Topics
- Revocation of Grant, Fraudulent Obtainment of Grant, Beneficial Interest in Estate, Purchaser in Possession, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mbuthia Njimu
Applicant
Grace Wacera Ndereba
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the grant of letters of administration to the respondent was obtained fraudulently or by concealment of material facts.
- 2 Whether the applicant, as a purchaser of a portion of the estate, was entitled to be included as a beneficiary or notified of the succession proceedings.
- 3 Whether the applicant has a valid claim to the land purchased from a beneficiary who had not yet acquired proprietary interest.
Ratio Decidendi
The court found that the applicant failed to establish any fraud or concealment of material facts by the respondent in obtaining the grant. The sale agreements relied upon by the applicant were executed after the grant had already been confirmed and the property transmitted to the respondent. The vendor, Francis Waweru Ndereba, did not have proprietary interest in the land at the time of the sale, and thus could not confer valid title to the applicant. The respondent, as administrator, had no obligation to involve the applicant in the succession proceedings, as the applicant's interest arose only after the grant was confirmed. The applicant's remedy, if any, lies against the estate of the...
Court Disposition
summons for revocation of grant dismissed with costs to the respondent
Orders
- The summons for revocation of grant dated 24th January, 2011 is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 395 OF 2005
IN THE MATTER OF THE ESTATE OF MWAI HINGA
alias KIHIA HINGA - DECEASED
DANIEL MBUTHIA NJIMU …............................... APPLICANT
VERSUS
GRACE WACERA NDEREBA …........................ RESPONDENT
JUDGMENT
This judgment is the outcome of the summons for revocation of grant dated 24th January, 2011, in which Daniel Mbuthia Njiru, hereinafter referred to as the Applicant sought for the grant issued to Grace Wacera Ndereba on 23rd May, 2007 revoked. The summons is supported by the Applicant's affidavit and that jointly sworn by Paul Kigara Ndereba and Albert Muiru. Grace Wacera Ndereba filed a replying affidavit she swore to opposed the summons. With the concurrence of learned counsels appearing in this court, it was directed that the summons be determined by affidavit evidence and written submissions.
I have considered the material placed before this court together with the submissions. On the face of the summons, the applicant listed the following grounds in support of the summons for revocation of grant.
The grant was made fraudulently by making false statements and concealing material facts.
The grant was obtained by means of an untrue allegation of fact essential in point of law to justify the grant.
The proceedings to obtain the grant were defective in substance.
The applicant deponed in his affidavit that he bought one(1) acre to be excised from L.R.NO. Othaya/Kihugiru/415from the share of one Francis Waweru Ndereba, a son and a beneficiary of the deceased. He claimed he was put into occupation and has had quiet possession. The aforesaid vendor is said to have passed away in the month of November, 2010. On 29th November, 2010, the applicant avers that he received a demand notice requiring him to vacate the land in dispute. The notice prompted the applicant to conduct a search which revealed that title had passed to Grace Wacera Ndereba, the Respondent by way of transmission having succeeded the estate of the late Mwai Hinga alias Kihia Hinga. The applicant claimed that he bought the land on the understanding that he would be included as one of the beneficiaries of the estate of Mwai Hinga alias Kihia Hinga, deceased. He alleged he was never notified nor involved in the Succession proceedings. The applicant averred that since his occupation was notorious he expected the Respondent to inform him of the existence of the succession cause. The Applicant received support from the brothers of the late Francis Waweru Ndereba (i.e. Paul Kigara Ndereba and Albert Muiru). The duo averred that they are aware their late father sold one (1) acre to the Applicant. They confirmed having witnessed the execution of the sale agreement.They also claimed that she was fully involved and she in fact sanctioned the transaction as the administrator of the estate. The duo further confirmed that the Applicant has taken up occupation of land in question which portion was due to the estate of Francis Waweru Ndereba, deceased. In her replying affidavit, the Respondent denied acting fraudulently in obtaining a grant of letters of administration. She averred that prior to the deceased's death the deceased had not sold his land and that she only came to learn of the existence of the sale agreement when she was served with the summons for revocation of grant. The Respondent alluded that the late Francis Waweru Ndereba had no proprietory interest to sale hence the applicant has no valid claim in law. It is strange to note that the Respondent did not respond to the allegation that the applicant occupied the land and has had peaceful occupation.
The matter before me is the issue touching on the revocation of grant. It is not in dispute that the grant was confirmed on 23rd May, 2007 and that L.R. No. Othaya/Kihugiru/415was thereafter transmitted to the Respondent. It is alleged that the grant was obtained fraudulently. On this ground, I find that the applicant has failed to establish any allegation of fraud against the Respondent. With respect, I agree with the Respondent that she had no obligation to involve the applicant in the succession proceedings because by then the applicant had not executed any agreement with the late Francis Waweru Ndereba nor with the deceased's estate. The affidavit evidence show that the agreements were executed on 1st August, 2007 and on 12th May, 2008. It is obvious from the above scenario that the Respondent could not have foreseen the future transaction between the late Francis Waweru Ndereba and the Applicant. I find no fault on the part of the Respondent. It is also apparent that the applicant purchased a portion of land from a person who had no proprietory interest. It is averred that he sold his beneficial interest. That beneficial interest is yet to be determined. Unfortunately, the vendor has passed on and the applicant may at the end be forced to pursue the Estate of Francis Waweru Ndereba for the available remedies in law.
In sum, I find the summons for revocation of grant to be unfounded. The same is dismissed with costs to the Respondent.
Dated, signed and delivered this 23rd day of August, 2013.
J.K. SERGON
JUDGE
In the presence of Kiminda for Respondent
Kingori for Applicant