[2014] KEHC 4240 (KLR)
The court found that the petitioners failed to notify the applicants, who were widows of a deceased son of the original deceased, of the application for letters of administration, thereby concealing material facts. The inclusion of a deceased beneficiary and the lack of notice to his survivors constituted sufficient...
Source-derived case information.
- Citation
- [2014] KEHC 4240 (KLR)
- Parties
- Respondent: Hadija Mohammed Makau; Respondent: Abdul Mohammed Makau; Respondent: Fatuma Mohammed Makau; Applicant: Farida Omar Mohammed; Applicant: Saida Omar Mohammed
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 291 of 2006
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application for revocation of grant allowed; temporary grant revoked
- Judges
- LN Mutende
- Legal Topics
- Revocation of Grant, Probate and Administration, Customary Law Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hadija Mohammed Makau
Respondent
Abdul Mohammed Makau
Respondent
Fatuma Mohammed Makau
Respondent
Farida Omar Mohammed
Applicant
Saida Omar Mohammed
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by concealment of material facts.
- 2 Whether all persons entitled in the same degree or in priority were notified as required by law.
- 3 Whether the estate was properly distributed according to applicable customary law.
Ratio Decidendi
The court found that the petitioners failed to notify the applicants, who were widows of a deceased son of the original deceased, of the application for letters of administration, thereby concealing material facts. The inclusion of a deceased beneficiary and the lack of notice to his survivors constituted sufficient grounds for revocation under Section 76 of the Law of Succession Act. Additionally, the existence of unresolved proceedings regarding other properties suggested that the full extent of the estate was not disclosed. The court concluded that the grant was obtained in contravention of the law and revoked the temporary grant of letters of administration.
Court Disposition
application for revocation of grant allowed; temporary grant revoked
Orders
- The Temporary Grant of Letters of Administration issued herein is revoked.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
28 paragraphs
No.308/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 291 OF 2006
IN THE MATTER OF THE ESTATE OFMOHAMMED MAKAU (DECEASED)
HADIJA MOHAMMED MAKAU……..……………….1ST PETITIONER/RESPONDENT
ABDUL MOHAMMED MAKAU………..…………….2ND PETITIONER/RESPONDENT
FATUMA MOHAMMED MAKAU…………..……….3RD PETITIONER/RESPONDENT
VERSUS
FARIDA OMAR MOHAMMED………..……………….1st RESPONDENT/APPLICANT
SAIDA OMAR MOHAMMED…..................................2ND RESPONDENT/APPLICANT
RULING
The application dated 11th August 2008 is brought pursuant to Section 76 of the Lawof Succession Act, and Rule 44(1) of the Probate and Administration Rules.
In the application the applicant seeks an order revoking/annulling the grant obtained by the petitioners/respondents on the ground that: –
It was obtained fraudulently, by the petitioners who made a false statement that Plot Machakos Town/ Block 11/132 Number 909/614 was part of the estate of the deceased and that the applicants were not entitled to it;
The petitioners obtained the grant without notice to all persons entitled in the same degree or in priority to them as required by Rule 24 of the Probate and administration Rules;
The petitioners failed to disclose to the court that the estate of the deceased was inherited by his widow, one Halima Mohamed (now deceased) and later distributed by the said widow.
In an affidavit in support of the application it is deponed that the applicants were wives to Mohammed Omar Makau, (now deceased) a son to the deceased. After the deceased passed, on Halima Mohammed, his wife inherited his estate. Halimadistributed the estate; Machakos Town Block 11/132 formerly Machakos Number 909/614 was given to Mohammed Omar and Abdul Mohammed Makau, the 2nd Petitioner, which they have renovated as it was dilapidated.
In a response thereto the respondents denying having obtained the grant fraudulently stated that they invited the applicants to discuss the mode of distribution but they declined to sign agreements.
They stated that the deceased’s estate was never inherited. The applicant’s husband had attempted to deprive them of the estate but never succeeded. Although the deceased was survived by three (3) sons and four (4) daughters, the applicants have been collecting rent from the estate of the deceased which comprises of only one property, Machakos Town Block 11/132 also referred to as L.R. No. 909/614.
Further, they averred that the property was not distributed by their deceased mother and the proposed mode of distribution by the applicant was improper and unjust.
The deceased herein died in 1969 prior to the Law of Succession coming into force. Having left no will, the law applicable would be the Kamba customary law or the Islamic customary law.
It is not in dispute that the deceased was survived by three (3) sons and four (4) daughters. The husband to the applicants, one of his sons died in the year 2001. It is evident that at the time of petitioning for Letters of Administration Intestate, although the name of Omar Mohammed Makau was included as a beneficiary, he was dead and those who survived him, the applicants herein were not notified of the intention to obtain Letters of Administration. This fact was concealed from them. It has also been established that there were proceedings at the Kadhi’s Court in respect of Plot No. 50 situated at Machakos said to have been an asset owned by the deceased. The case was not concluded.
This perse would be evidence that the deceased may have left more properties that were not disclosed by the petitioners. This would call for revocation of the grant issued.
Accordingly, I do revoke the Temporary Grant of Letters of Administration issued herein. This being a succession matter, each party shall bear their own costs.
DATED, SIGNEDand DELIVERED at MACHAKOS this 12THday of JUNE 2014.
L.N. MUTENDE
JUDGE