[2012] KEHC 187 (KLR)
The court found that the petitioner/respondent failed to disclose the existence of other survivors of the deceased and did not obtain their consent before filing the succession cause. The P & A form 5 only reflected the respondent as the sole survivor, and the replying affidavit did not deny the existence of other...
Source-derived case information.
- Citation
- [2012] KEHC 187 (KLR)
- Parties
- Respondent: Franco Alumasa Mundia; Applicant: John Anono Mundia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 236 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application allowed
- Legal Topics
- Revocation of Grant, Concealment of Material Facts, Succession Procedure, Beneficiaries Consent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Franco Alumasa Mundia
Respondent
John Anono Mundia
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of representation should be revoked due to concealment of material facts by the petitioner.
- 2 Whether the petitioner failed to disclose all survivors/beneficiaries of the deceased.
- 3 Whether the inclusion of a stranger to the estate and lack of consent from other family members invalidated the grant.
Ratio Decidendi
The court found that the petitioner/respondent failed to disclose the existence of other survivors of the deceased and did not obtain their consent before filing the succession cause. The P & A form 5 only reflected the respondent as the sole survivor, and the replying affidavit did not deny the existence of other beneficiaries. This amounted to concealment of material facts, which is a valid ground for revocation of a grant under the Law of Succession Act. The court therefore allowed the application for revocation of the grant.
Court Disposition
application allowed
Orders
- The grant issued herein is revoked.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
Succession Cause 236 of 2011 [if gte mso 9]><xml>
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IN THE MATTER OF THE ESTATE OF JOSEPH MUNDIA KIGANGALA- (DECEASED)
BETWEEN
FRANCO ALUMASA MUNDIA ………...... PETITIONER/RESPONDENT
VERSUS
JOHN ANONO MUNDIA ……………………. OBJECTOR/APPLICANT
R U L I N G
The application by way of Notice of Motion dated 29. 11. 11 seeks orders for the revocation of the grant issued herein.
The application is supported by the affidavit of JOHN ANONO MUNDIAthe Objector/applicant sworn on 29. 11. 11.
The main ground upon which the application is based is that the Petitioner/respondent concealed material facts when he moved the court in that he did not disclose the other survivors/beneficiaries. It is further contended that one RAJAB KUNZA MBARUKA who is a stranger to the estate has been included and that the respondent did not obtain the consent of other family members before filing the Succession Cause.
In opposition to the application, the respondent FRANCO ALUMASA MUNDIA filed a replying affidavit sworn on 18. 9.2012. According to the said affidavit, the respondent has averred that he is the one who lived with his late father on the land in question and the father bequeathed the land to him.
It is further contended that the deceased had purchased the said land and it was therefore not ancestral land.
The P & A form 5 reflects the respondent as the only person who survived the deceased. The replying affidavit does not deny that there were other survivors.
There was therefore concealment of material facts when the grant was issued. There was also no consent obtained from the other beneficiaries before the Succession cause was filed.
The application has merits and is allowed. Costs to the applicant.
Delivered, dated and signed at Kakamega this 18th day of December, 2012
B. THURANIRA JADEN
J U D G E