[2007] KEHC 372 (KLR)
The court found that the petitioner, Hiuhu Muturi, misrepresented himself as the son of the deceased when he was in fact the deceased's brother. The objector, Rose Karura Ndiritu, was the widow of the deceased and, under Section 66 of the Law of Succession Act, had a superior claim to the grant of administration....
Source-derived case information.
- Citation
- [2007] KEHC 372 (KLR)
- Parties
- Petitioner: Hiuhu Muturi; Objector: Rose Karura Ndiritu
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 41 of 2004
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Objection upheld; petition struck out; grant of administration to objector; costs to objector.
- Judges
- MM Kasango
- Legal Topics
- Grant of Administration, Letters of Administration, Order of Preference, Fraudulent Misrepresentation, Intestacy, Costs in Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hiuhu Muturi
Petitioner
Rose Karura Ndiritu
Objector
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the petitioner was entitled to the grant of administration as the son of the deceased.
- 2 Whether the objector, as the widow of the deceased, had a superior claim to the grant of administration.
- 3 Whether the petitioner's misrepresentation constituted fraud warranting striking out the petition.
Ratio Decidendi
The court found that the petitioner, Hiuhu Muturi, misrepresented himself as the son of the deceased when he was in fact the deceased's brother. The objector, Rose Karura Ndiritu, was the widow of the deceased and, under Section 66 of the Law of Succession Act, had a superior claim to the grant of administration. The petitioner's failure to file submissions was taken as an admission of the objector's claims. The court exercised its discretion to strike out the petition and ordered that the grant be issued to the objector, awarding her costs of the objection proceedings.
Court Disposition
Objection upheld; petition struck out; grant of administration to objector; costs to objector.
Orders
- The petition filed by Hiuhu Muturi is struck out.
- A grant of administration is to be issued to Rose Karura Ndiritu.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Succession Cause 41 OF 2004.
IN THE MATTER OF THE ESTATE OF SOSPETER NDIRITU MUTURI (DECEASED)
HIUHU MUTURI………………………………………………..……….PETITIONER
Versus
LOISE KARURA NDIRITU……………………………………….……..OBJECTOR
JUDGEMENT
An objection in this succession cause was filed by Rose Karura Ndiritu. She objected to the grant being issued to Hiuhu Muturi. The court ordered that that objection be heard by way of written submissions. When the matter came up before court on 11th July 2007, the Objector had filed her submissions. The Petitioner Hiuhu Muturi who was in person had not filed his submissions and he was given seven days to file them. To-date he has not filed those submissions. The Petitioner in petitioning for the grant described himself as the son of the deceased. The Objector in her objection said that the Petitioner was not the son of the deceased but that he was a brother. She was not aware that the Petitioner had so described himself in his petition. She therefore concluded that he wanted to get Letters of Administration by using fraudulent means. The Objector Rose Karura Ndiritu described herself as the widow of the Deceased. Her children with the deceased are Lucy Wangari Ndirangu, Roseline Wakarindi Mwaura, Jackson Kamau Ndiritu and Joyce Wangui Ndiritu.
Section 66 of the Law of Succession Act gives the court the final discretion in deciding to whom the Grant of Administration shall be given. Without prejudice to that discretion the court is to be guided by the following order of preference; surviving spouse with or without other beneficiaries and secondly other beneficiaries entitled intestacy. The other groups that can be considered is public trustees and creditors. Since the Petitioner did not file his submissions in this matter the court takes it that he does not deny that he is not the son of the deceased as he described himself. Accordingly the objection raised by the widow of the deceased is merited and the order of this court is that the Petition filed herein by Hiuhu Muturi is hereby struck out and the court hereby orders that a grant be issued to the Objector Rose Karura Ndiritu in respect of this estate. The Objector is granted costs of the objection proceedings.
Dated and delivered at Nyeri this 2nd day of October 2007.
MARY KASANGO
JUDGE