[2020] KEHC 9123 (KLR)
The court held that the appellant was under a mandatory statutory duty to disclose the existence of all her siblings when applying for a grant of letters of administration intestate. The proceedings were commenced as intestate succession, and the relevant statutory provisions required full disclosure of all...
Source-derived case information.
- Citation
- [2020] KEHC 9123 (KLR)
- Parties
- Appellant: Esther Murugi Macharia; Respondent: Tabitha Wangare Karanja
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 105 of 2018
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DAS Majanja
- Legal Topics
- Succession, Grant Revocation, Disclosure of Beneficiaries, Oral Will, Intestacy, Duty of Full Disclosure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Murugi Macharia
Appellant
Tabitha Wangare Karanja
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was under a legal duty to disclose all surviving beneficiaries when applying for a grant of letters of administration intestate.
- 2 Whether failure to disclose the existence of siblings justified revocation of the grant under section 76 of the Law of Succession Act.
Ratio Decidendi
The court held that the appellant was under a mandatory statutory duty to disclose the existence of all her siblings when applying for a grant of letters of administration intestate. The proceedings were commenced as intestate succession, and the relevant statutory provisions required full disclosure of all beneficiaries. The appellant's reliance on an alleged oral will did not absolve her from this duty, especially as the application was not made for probate of a will but for administration intestate. The failure to disclose the existence of other beneficiaries constituted a material non-disclosure, justifying the revocation of the grant under section 76 of the Law of Succession Act. The...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE HIGH COURT OF KENYA
AT KIAMBU
CORAM: D. S. MAJANJA
CIVIL APPEAL 105 OF 2018
BETWEEN
ESTHER MURUGI MACHARIA ...........APPELLANT
AND
TABITHA WANGARE KARANJA ......RESPONDENT
(Being an appeal from the ruling and order of Hon. V. Kachuodho, RM dated 30th July 2018 in Thika Magistrates Court Succession Cause No. 216 of 2016 (Formerly Succession Cause No. 75 of 2015))
JUDGMENT
1. This is an appeal from the ruling of the trial court in which the court revoked the grant issued and confirmed on 28th April 2014 and 9th February 2015 respectively in respect of the estate of Monica Wanjiru Macharia (deceased) who died on 24th January 2012.
2. The court revoked the grant under section 76 of the Law of Succession Act (Chapter 160 of the Laws of Kenya) on the ground that the appellant failed to disclose that she had 6 siblings when she filed Thika Magistrates Court Succession Cause No. 75 of 2019.
3. As this is a first appeal, I am required to examine all the evidence and reach an independent decision bearing in mind that I neither heard nor saw the witnesses testify.
4. As I understand, the appellant’s case was that she did not need to disclose the other beneficiaries as the deceased had made an oral will in which she was the sole beneficiary. She did not dispute the fact that the deceased had other children.
5. The trial magistrate was right to hold that she had a duty to disclose the existence of all her siblings in the circumstances. I note that although the appellant stated that the deceased had made an oral will, the proceedings were commenced by way of a petition for grant of letters of administration intestate and in fact a grant of letters of administration intestate (Form P & A 41) issued. In that case section 51 of the Law of Succession Act which deals with the information that should go into an application for grant of representation applied and in particular under section 51(2) (g) thereof which states:
51(2). An application shall include information as to___...
(g) in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased…
6. The duty to provide the information is mandatory hence I do not find any merit in this appeal. As it is a family matter, I will not award costs.
7. The appeal is dismissed.
DATED and DELIVERED at KIAMBU this 6th DAY OF JANUARY 2020.
D. S. MAJANJA
JUDGE
Mr Kanyi instructed by Muturi Njoroge and Company Advocates for the appellant.
Mr Njeru instructed by Ishmael and Associates Advocates for the respondents.