[2006] KEHC 879 (KLR)
The court found that the applicant, Leah Wanjiru Mwaura, had proved she was a widow of the deceased and that she and her four children survived the deceased. The petitioner, Grace Wangui Kimani, failed to disclose the existence of the applicant and her children when petitioning for the grant of letters of...
Source-derived case information.
- Citation
- [2006] KEHC 879 (KLR)
- Parties
- Petitioner: Grace Wangui Kimani; Applicant: Leah Wanjiru Mwaura
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 519 of 2004
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- grant revoked and new joint grant ordered
- Judges
- FI Koome
- Legal Topics
- Succession, Revocation of Grant, Customary Marriage, Non Disclosure, Priority of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wangui Kimani
Petitioner
Leah Wanjiru Mwaura
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by concealment of material facts.
- 2 Whether Leah Wanjiru Mwaura is a widow of the deceased and entitled to benefit from the estate.
- 3 Whether the grant should be revoked and a new grant issued to both widows.
Ratio Decidendi
The court found that the applicant, Leah Wanjiru Mwaura, had proved she was a widow of the deceased and that she and her four children survived the deceased. The petitioner, Grace Wangui Kimani, failed to disclose the existence of the applicant and her children when petitioning for the grant of letters of administration, thereby obtaining the grant fraudulently by concealment of material facts. The court held that both widows are entitled in equal priority to administer the estate. Consequently, the grant issued solely to the petitioner was revoked, and a new grant was ordered to be issued jointly to both widows as administrators of the deceased's estate.
Court Disposition
grant revoked and new joint grant ordered
Orders
- The grant of letters of administration issued to Grace Wangui Kimani on 8th February 2005 and confirmed on 21st October 2005 is revoked.
- All consequential transactions, especially the transfer of RARE/TERET BLOCK 1/2442 MUTUKANIA to Grace Wangui Kimani, are cancelled.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Succession Cause 519 of 2004
IN THE MATTER OF THE ESTATE OF JAMES KIMANI NGANGA (DECEASED)
GRACE WANGUI KIMANI …………............................………………….. PETITIONER
AND
LEAH WANJIRU MWAURA ….......................…………...……..…...…… APPLICANT
RULING
The lateJames Kimani Ng’anga(deceased) died on 12th September 1999 intestate. Grace Wangui Kimani petitioned for letters of Administration on 4th October 2004 while claiming that the deceased died intestate and was survived by only herself and a daughter called Eunice Nyambura.
The grant of letters of Administration was issued on 8th February 2005 and subsequently confirmed on 21st October 2005 whereby the deceased only propertyRARE/TERET BLOCK 1/2442 MUTUKANIA was vested upon the said Grace Wangui Kimani.
On 13th day of December 2005, Leah Wanjiru Mwaura filed the summons for revocation of the grant on the grounds that the grant was obtained fraudulently by the making of a false statement and by concealment from court of something material to the case.
This matter came up for directions and the petitioner who was duly served was granted leave to file a replying affidavit and directions were given that the matter do proceed to hearing by way of oral evidence to determine whether the applicant, Leah Wanjiru Mwaura was the widow of the deceased.
The petitioner did not file any replying affidavit and did not attend court during the hearing. The applicant proceeded to give oral evidence and gave details to this court of how she too was also married to the deceased through the Kikuyu Customary Law of Marriage in 1967. They had five children with the deceased although one died, there are four surviving children namely; Simon Murigi, Agnes Njambi, Rahab MuthoniandEunice Njeri.
According to the applicant, she used to live with the deceased at RARE/TERET BLOCK 1/2442 MUTUKANIAwhere the deceased is buried. The petitioner is her co-wife and she secretly applied for the letters of Administration whereby the applicant and her children have been left out.
The petitioner did not attend court nor did she file a replying affidavit despite the leave that was granted by court.
I am satisfied that the applicant has been able to prove that she is the widow of the deceased and she and her four children also survived the deceased. She is ranked in priority with the petitioner who obtained the grant by failing to disclose material facts.
Accordingly, I hereby revoke the grant of letters of Administration issued to the petitioner on 8th February 2005 and confirmed on 21st October 2005 and all the consequential transaction especially the transfer of RARE/TERET BLOCK 1/2442 MUTUKANIAto Grace Wangui Kimani is also cancelled.
The said original grant be returned to court by the petitioner for cancellation. Another grant be issued to both widows; LEAH WANJIRU MWAURAandGRACE WANGUI KIMANI as joint Administrators of the deceased estate who shall proceed either jointly or severally to apply for confirmation and distribution of the deceased estate.
It is so ordered.
Ruling read and signed on 7th July 2006.
MARTHA KOOME
JUDGE