[2015] KEHC 340 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 165 OF 2014

IN THE MATTER OF THE ESTATE OFJOEL MBITHI GEDION NDUMBU(DECEASED)

DOROTHY MONTHE NDUMBU........................................................................1ST APPLICANT

SUSAN KATUNGWA NDUMBU.......................................................................2ND APPLICANT

THOMAS RENE NDUMBU................................................................................3RD APPLICANT

MATHEW BENJAMIN NDUMBU.......................................................................4TH APPLICANT

VERSUS

MARY P. MBITHI....................................................................................................RESPONDENT

R U L I N G

A grant of letters of administration intestate (grant) of the Estate of Joel Mbithi Gedion Ndumbu(deceased) was issued to Mary P. Mbithi Ndumbuand confirmed on the 9th October, 2012.

On the 3rdday of March, 2014,the Applicants filed summons for revocation or annulment of the grant on the ground, inter alia that the grant was made without any notice or consent of the Applicants who are a daughter of the deceased’s first wife Ruth Katungwaand Children of the late Arnold Ndumbu,the deceased’s son who is deceased.

On the 24th September, 2014,the Respondent filed an application seeking the mental status of the 1st Applicant to be inquired into by the court and depending on the outcome, the summon for revocation of the grant dated 3rd March, 2014be dismissed, which would pave way for lifting of the cautions lodged at the land registry on Land Reference Numbers Mulango/Wikililye/1369, Mulango Kyangunga/1436and Nzambani Kyanika/7forming the Estate of the deceased.

Filed with the application was Notice of Preliminary Objection on points of law that: the 1st Applicant has filed the application in express and flagrant breach of the mandatory provisions of the law relating to suits by persons of unsound mind. That the 2nd, 3rd and 4th Applicants were not dependants of the deceased immediately prior to his death and as such have no legal capacity to bring the present application/summons.

The Applicants filed grounds of opposition to the Respondent’s Notice of Preliminary Objection, that: the issue in controversy is whether the grant was obtained properly; the 1st Applicant is not of unsound mind absolutely as she has lucid moments and has infact executed the affidavit in support of the application for revocation; and her state of mind does not negate the fact that the deceased was her father, if the suit is sustained the application shall be amended.

That, the court has power to make a judgment call to determine the first Applicant’s mental condition thereafter give directions; The Law of Succession Act succinctly provides for any interested party in the Estate of the deceased having the right to file an application for revocation of the grant which justifies all parties to be on record and there is no valid suit before court for removal of the caution registered.

The application was canvassed by way of written submissions that have been considered.

The grant issued herein was made following an application by the Respondent who deponed an affidavit stipulating the status of the Estate of the deceased. Her averments are being challenged on the grounds of non-disclosure of some survivors who were entitled by law to benefit from the Estate of the deceased.

The basis of the Preliminary Objection raised is that one of the Applicants, the 1st Applicant in particular is of unsound mind therefore the application is filed in express breach of the mandatory provisions of the law.

It is not denied that the 1st Applicant is of unsound mind, although it is argued that she has lucid moments. As correctly argued, the court can only tell if the Applicant goes through a period of normality between periods of insanity if it inquires into unsoundness of her mind. This would ordinarily be done pursuant to the provisions of the Mental Health Act. If found to be incapable of protecting his/her interest, such a person would lack the legal capacity to institute any proceedings. It would behoove such an individual to act through a guardian.

The application herein has been brought pursuant to Rule 73of the Probate and Administration Rulesthat provides thus:

“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

This court in deciding this matter should consider substantial justice so as not to violate the rights of the Applicant to benefit from the Estate of the deceased if established. The application has been brought by three other Applicants who claim to have been dependants of the deceased. In order for this court to do justice it must give them a hearing. Striking out an application prior to hearing it would amount to dismissal of the same on a technicality. In the case of the Estate of Kibata Wamukuu Gachuki – Lucy Wanjiru Kibaba vs. Lucy Wanjiru Mucheke (2013)eKLRit was stated thus:

“....... technicalities of procedure in succession matters are treated less seriously than in civil matters because of the nature of succession proceedings and the great need to focus on substance with a view to do justice for the parties.”

For justice to be seen to have been done we must consider reasons for revoking and/or annulling a grant.

According to Section 76of the Law of Succession Act,a grant may be revoked and/or annulled on grounds inter alia that:

Proceedings adopted in granting the same were defective in substance; non disclosure or concealment of important matters, reliance on false statements and where the grant becomes useless and inoperative.

To establish the aforestated grounds the court must hear parties. The action taken by the court is discretionary. The court can act suo moto or having heard an interested party. If the 2nd, 3rd and 4th Applicants are interested parties there is no reason why they should not be heard.

From the foregoing, the Preliminary Objection raised fails. Accordingly, it is dismissed with no orders as to costs.

It is so ordered.

Dated at Kitui this 16TH day of NOVEMBER, 2015.

L. N. MUTENDE

JUDGE

Dated, Signed and Delivered at Machakos this 2nd day of December, 2015.

P. NYAMWEYA

JUDGE