[2009] KEHC 904 (KLR)
The court found that the applicants failed to challenge the evidence that the respondent was the deceased's daughter-in-law and had been in occupation of the property for over 35 years. The chief's letter confirming the respondent's relationship to the deceased and entitlement to inherit was unchallenged. Under...
Source-derived case information.
- Citation
- [2009] KEHC 904 (KLR)
- Parties
- Respondent: Florence Wangechi Kabiru; Applicant: Zealia Wanjiru Moguku; Applicant: Githaiga Gathitu; Applicant: Githaiga Mbuthia
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 478 of 2003
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation/annulment of Grant
- Outcome
- summons for annulment of grant dismissed with costs to the petitioner
- Judges
- JK Sergon
- Legal Topics
- Succession, Revocation of Grant, Disclosure of Beneficiaries, Priority of Heirs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Wangechi Kabiru
Respondent
Zealia Wanjiru Moguku
Applicant
Githaiga Gathitu
Applicant
Githaiga Mbuthia
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Revocation/annulment of Grant
Legal Issues
- 1 Whether the grant of letters of administration to the respondent was obtained fraudulently by concealment of material facts.
- 2 Whether the applicants are rightful heirs entitled to benefit from the deceased's estate.
- 3 Whether the respondent was entitled to exclude the applicants from the list of heirs under the Law of Succession Act.
Ratio Decidendi
The court found that the applicants failed to challenge the evidence that the respondent was the deceased's daughter-in-law and had been in occupation of the property for over 35 years. The chief's letter confirming the respondent's relationship to the deceased and entitlement to inherit was unchallenged. Under section 66 of the Law of Succession Act, the respondent and her children have priority over the applicants in inheritance. The court concluded that the respondent was entitled to exclude the applicants from the list of heirs, and there was no merit in the summons for annulment of grant.
Court Disposition
summons for annulment of grant dismissed with costs to the petitioner
Orders
- The summons for annulment of grant dated 19th September 2006 is dismissed.
- Costs awarded to the petitioner.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Succession Cause 478 of 2003
ESTATE OF GATHITU GITHAIGA ………………… DECEASED
AND
FLORENCEWANGECHI KABIRU…………..PETITIONER/RESPONDENT
AND
ZEALIA WANJIRU MOGUKU ………………..…..1ST APPLICANT
GITHAIGA GATHITU…………………………….…2ND APPLICANT
GITHAIGA MBUTHIA……………………..….……3RD APPLICANT
RULING
Pursuant to the provisions of section 76(b)(c) of the Law of Succession Act, Zealia Wanjiru, applied for the letters of administration in respect of the estate of Gathitu Githaiga, deceased given to Florence Wangechi Kabiru to be revoked on the basis that the same were obtained fraudulently by the making of a false statement or by the concealment from the court of material factors important to this succession cause. The applicant further urged this court to determine the rightful heirs of the deceased’s estate. It is said that the Petitioner failed to disclose all the beneficiaries. Florence Wangechi Kabiru, filed a replying affidavit to oppose the summons. She is of the view that the applicants have not shown sufficient interest in the deceased’s estate hence they are not entitled to inherit anything. It is said that the deceased died without other relatives save for the petitioner and her late husband. The petitioner averred that she has been residing on the plot No. Gikondi/Thimu/242 for close to 35 years whereas the 1st and 2nd applicants live in Subukia while the 3rd applicant resides on parcel No. Gikondi/Thimu/241. I have taken into account the facts deponed in the affidavits filed for and against the summons for revocation and or annulments of grant. I have also considered the oral arguments presented by Mr. Mahan, learned advocate for the applicants. It is said the deceased had the 1st and 2nd applicants as his brother, sister and step son, while the 3rd applicant is said to be the deceased’s step brother. The petitioner has been accused of failing to disclose the aforesaid facts. The petitioner has said that the applicants are strangers to her and that they are not related to the deceased. The petitioner averred that she was a daughter in law to the deceased.
I have carefully considered the allegations and the counter –allegations. The letter of the chief Gikondi Location dated 23/10/2003 and attached to the affidavit of Florence Wangechi Kabiru which was filed in support of the petition of the letters of administration has not been challenged. In the aforesaid letter the area chief clearly states that Florence Wangechi Kabiru was the deceased’s daughter in – law. The chief further stated that she is entitled to inherit the deceased estate since her husband who was the deceased’s son was also dead. The applicants have not challenged the averment on the relationship between the petitioner and the deceased. They have not challenged the fact that she has been in occupation of L.R No. Gikondi/Thimu/242 for over 35 years.
In my estimation the petitioner and her children rank on priority as against the applicants. The petitioner wastherefore entitled to exclude them in the list of heirs of Gathitu Githaiga alias Charles Gathitu Githaiga, deceased under section 66 of the law of succession Act.
Consequently I find no merit in the summons for annulment of grant dated 19th September 2006. The same is ordered dismissed with costs to the petitioner.
Dated and delivered this 30th September day of 2009.
J.K. SERGON
JUDGE