[2012] KEHC 2513 (KLR)
The court found that the Respondent failed to establish her capacity as a lawful beneficiary or administrator of the estate of Phylis Wairimu Ndung'u. She did not address or rebut the Applicant's allegations regarding her relationship to the deceased, nor did she explain the exclusion of the Applicant and the...
Source-derived case information.
- Citation
- [2012] KEHC 2513 (KLR)
- Parties
- Applicant: Elijah Gatu Ndung'u; Respondent: Lydia Njoki Gatu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 127 of 1994
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation and Annulment of Grant
- Outcome
- grant revoked; fresh grant to applicant
- Judges
- JK Sergon
- Legal Topics
- Revocation of Grant, Letters of Administration, Capacity of Administrator, Succession, Customary Law Marriage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Gatu Ndung'u
Applicant
Lydia Njoki Gatu
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation and Annulment of Grant
Legal Issues
- 1 Whether the Respondent was lawfully entitled to the grant of letters of administration for the estate of Phylis Wairimu Ndung'u.
- 2 Whether the Respondent excluded lawful beneficiaries from the list of survivors of the deceased.
- 3 Whether the grant issued to the Respondent should be revoked due to misrepresentation or non-disclosure of material facts.
Ratio Decidendi
The court found that the Respondent failed to establish her capacity as a lawful beneficiary or administrator of the estate of Phylis Wairimu Ndung'u. She did not address or rebut the Applicant's allegations regarding her relationship to the deceased, nor did she explain the exclusion of the Applicant and the deceased's daughters as survivors. The court was convinced that the Applicant had established sufficient grounds for revocation of the grant, as the Respondent had not demonstrated entitlement to the grant and had failed to disclose all beneficiaries. Consequently, the court revoked the grant issued to the Respondent and directed that a fresh grant be issued in the name of the...
Court Disposition
grant revoked; fresh grant to applicant
Orders
- The grant of letters of administration issued to Lydia Njoki Gatu is revoked.
- A fresh grant shall be issued in the name of Elijah Gatu.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Succession Cause 127 of 1994
IN THE MATTER OF THE ESTATE OF PHYLIS WAIRIMU NDUNG\'Ualias WAIRIMU w/o NDUNG\'U
ELIJAH GATU NDUNG\'U...............................APPLICANT
-versus-
LYDIA NJOKI GATU....................................RESPONDENT
R U L I N G
The subject matter of this ruling is the Summons for Revocation and Annulment of Grant dated 11th July 2003, in which Elijah Gatu, the Applicant prays for the Grant of Letters of Administration given to Lydia Njoki Gatu to be revoked. The summons is supported by the affidavit of the Applicant. It is important to note that the Respondent did not file any reply to the summons but she merely relied on her affidavits and those of Rosemary Wambura and Beatrice Muchugu Muita to oppose the summons.
When the summons came up for interpates hearing, Learned Counsels appearing in the matter recorded a Consent Order to have the Summons disposed of by affidavit evidence and written submissions.
I have considered the written submissions plus the affidavit evidence. It is the submission of the Applicant that the Respondent that the Respondent was not a wife of Ndung\'u Gatu nor a relative of Phylis Wairimu Ndung\'u, the deceased herein. The Applicant gave the history of the steps the Respondent had taken to show she is related to the deceased. He pointed out that at one time she claimed to be the only child of the deceased and later referred herself as the co-wife of the Applicant\'s mother and therefore as a wife of Ndung\'u Gatu. It is further alleged that the Respondent stated that she was a wife to Peris Wairimu under Kikuyu Customary Law. It is also alleged that the Respondent failed to name neither the three daughters nor the Applicant as survivors and relatives of the deceased. For the above reasons, the Applicant urged this court to revoke the grant. The Respondent on her part is of the view that the application is a mere afterthought with no basis. It is apparent to me that the Respondent did not answer to specific allegations made by the Applicant. She did not address this court on her capacity before this court. She has also not explained to this court the reasons why she excluded the Applicant and three of the deceased\'s daughters as surviving the deceased. She has also not disputed the capacity of the Applicant and his siblings. In my humble view, I am convinced the Applicant has established the Summons. I grant the orders sought therein and direct that a fresh grant be issued in the name of Elijah Gatu who should thereafter apply for the grant notwithstanding that six months will not have lapsed from the date of this order.
Dated and delivered this 17th day of August 2012.
…..............
J. K. SERGON
JUDGE