[2007] KEHC 1043 (KLR)
The court found that the respondent obtained the grant by concealing the existence and entitlement of the applicant and her children, who were rightful beneficiaries of the deceased's estate. The respondent's inclusion of purchasers as beneficiaries and misstatement of the estate's value further demonstrated...
Source-derived case information.
- Citation
- [2007] KEHC 1043 (KLR)
- Parties
- Applicant: Eunice Muthoni Mugena; Respondent: Priscilla Wanjiru Githae
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 70 of 2003
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Legal Topics
- Succession, Revocation of Grant, Fraudulent Concealment, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Muthoni Mugena
Applicant
Priscilla Wanjiru Githae
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the grant of representation was obtained fraudulently by concealment of material facts.
- 2 Whether the applicant, as a widow of the deceased's son, and her children were entitled to a share of the estate.
- 3 Whether the lower court had jurisdiction given the value of the estate.
Ratio Decidendi
The court found that the respondent obtained the grant by concealing the existence and entitlement of the applicant and her children, who were rightful beneficiaries of the deceased's estate. The respondent's inclusion of purchasers as beneficiaries and misstatement of the estate's value further demonstrated fraudulent conduct. The applicant proved that the grant was obtained in a manner contrary to Section 76 of the Law of Succession Act, warranting its revocation. The court held that the applicant and her children were entitled to be considered in the distribution of the estate, and the respondent's actions deprived them of their lawful share. The application for revocation was...
Court Disposition
application allowed
Orders
- The grant of representation issued to the respondent is revoked.
- The applicant and her children are to be included as beneficiaries in the estate.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Misc Case 70 of 2003
DISHON GITHAE NGUNYUMU…………….......………….DECEASED
AND
EUNICE MUTHONI MUNGENA……………....……..……..APPLICANT
VERSUS
PRISCILLA WANJIRU GITHAE…………….………..…RESPONDENT
JUDGMENT
Summons for Revocation of grant under section 76 Succession Act P& A rule 44 was filed by Eunice Muthoni Mugena a daughter in law of the deceased DISHON GITHAE NGUNYUMU who died on 21/8/1990.
The grounds upon which application are that is based:-
1. that the grant was obtained fraudulently by concealment from court of something material to the case. In this case the material concealed is that the applicant being a widow of son of deceased was entitled to inherit together with her 5 children a share in the Mwerua/Kithumbui/Plot No. 763 the only asset of deceased on her own behalf and on behalf of children. And that the grant was obtained by means of untrue allegation of fact essential in point of law to justify the grant.
The parties gave evidence orally in court under court direction. The applicant states that she was not informed of the filing of succession case as she was in Mombasa. When she learnt of the fact she came home and learnt that the family land was still intact. On checking on the case to know that her husband was not one of the beneficiaries. Her effort to be included as beneficiary had not succeeded as the chief’s letter seeking to include her name reached after grant had been issued and confirmed. The applicants case was closed after her witnesses, brother in law gave evidence. For the Respondent evidence was given by Priscilla Wanjiru Githae who confirmed that she was the widow of the deceased. She said she was aware of applicant with her 5 children since they came to her husband funeral. She said her son Michael Ngunyumu had his own title. She believed that her deceased son James had his own land and that is why she did not include them in succession case. She also explained that Agnes Wambui got one acre because she contributed Shs.24,000/= to the funeral. The portion of land was sold before grant was issued. Also that Samuel was taking ½ share of Geoffrey which had been sold to him. The consequence is that although Respondent said in the forms that Agnes and Samuel were her children it is false. The value of the estate was not correctly stated and therefore the provisions of section 49 Succession Act the lower court had no jurisdiction to deal with the estate which was valued at more than Shs.100,000/= again from her evidence she included the purchasers of the assets of the estate and allocated 1 ½ acres to them on the ground that she had sold the pieces f land to them for the funeral expenses and her son had sold half his share.
My finding is that the Respondent proceeded to obtain a grant in fraudulent manner concealing from the court material relevant to the matter.
I find that the provisions of the law namely Section 76 of Succession Act has been proved and the applicant has proved her case.
The application is allowed and orders granted as prayed.
No orders as to costs.
Dated this 12th June, 2007.
J. N. KHAMINWA
JUDGE
12/6/2006
Khaminwa – Judge
Njue – Clerk
Mr. Kathungu HB for Magee – Respondent
N/A
J. N. KHAMINWA
JUDGE