[2010] KEHC 3784 (KLR)
The court found that the application for revocation of grant raised serious allegations of fraud, concealment of material facts, and lack of consent from other beneficiaries. Given that the application had not yet been served on the respondent, the court did not make a final determination on the merits but directed...
Source-derived case information.
- Citation
- [2010] KEHC 3784 (KLR)
- Parties
- Applicant: Elizabeth Wanjiru Mwangi; Respondent: Appollos Hiram Muna
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 52 of 2005
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- Application to be served on respondent; no final orders on revocation at this stage.
- Legal Topics
- Revocation of Grant, Probate and Administration, Fraudulent Obtainment of Grant, Beneficiaries Consent, Mismanagement of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Wanjiru Mwangi
Applicant
Appollos Hiram Muna
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of probate was obtained fraudulently by false statements or concealment of material facts.
- 2 Whether the respondent failed to obtain the consent of all beneficiaries before petitioning for the grant.
- 3 Whether the proceedings to obtain the grant were defective in substance.
Ratio Decidendi
The court found that the application for revocation of grant raised serious allegations of fraud, concealment of material facts, and lack of consent from other beneficiaries. Given that the application had not yet been served on the respondent, the court did not make a final determination on the merits but directed that the application be served on the respondent's advocates for a response within 14 days. The matter was to be set down for inter-partes hearing thereafter. The court's reasoning was guided by the need to ensure that all parties are heard and that due process is followed before making any substantive orders affecting the administration of the estate.
Court Disposition
Application to be served on respondent; no final orders on revocation at this stage.
Orders
- The application shall be served upon M/s. Kiarie & Co. Advocates for the respondent within 14 days.
- A mutually agreed date to be taken for inter-partes hearing.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE
Succession Cause 52 of 2005
IN THE MATTER OF THE ESTATE OF APPOLLOS MWANGI MUNA – deceased.
AND
APPOLLOS HIRAM MUNA..............................................................PETITIONER.
R U L I N G.
By summons for revocation of grant dated 10th December, 2009, pursuant under section 76 of the Laws of Succession Act, Rule 44 and 73 of the Probate and Administration rules, the applicant seeks orders.
(1)THIS, application be certified as urgent and same be heard ex-parte at the 1st instance.
(2)THAT, this court be pleased to issue orders preserving the estate of the late APPOLLO MWANGI MUNA pending the hearing and determination of the application.
(3)THAT, this honourable court be pleased to revoke the grant of probate herein issued to APPOLLO HIRAM MUNA, the Respondent herein.
(4)THAT, costs be provided for.
The application is based on the grounds:-
(a)THAT, the grant of probate herein was obtained fraudulently by making of a false statement that the applicant had the consents of other beneficiaries.
(b)THAT, the grant of probate herein was obtained by concealment of a material fact that is the beneficiaries of the estate herein were desirous of having joint excise.
(c)THAT, the proceedings to obtain the grant were defective.
(d)THAT, the Respondent has not proceeded diligently with the administration of the estate herein has he has been constantly threatening other beneficiaries
(e)THAT, it is in the interest of justice that the estate herein be preserved pending the determination of this application.
(f)THAT, the will the basis of the grant is not genuine.
(g)THAT, it is in the interest of justice that the orders sought herein be granted.
The application is predicated upon the annexed affidavit of Elizabeth Wanjiru Mwangi sworn on 10th December, 2009.
On behalf of the applicant, it was urged that the deceased Apollo Mwangi Muna died on 24th September, 2001 and a grant of probate in respect of his estate was granted to Apollo Hiram Muna, the respondent.
Subsequently the respondent petitioned for the grant of probate without the consent or knowledge of the other beneficiaries.
It was the applicant’s contention that he neither gave his consent nor did the other beneficiaries. Consequently, the applicant concealed material facts to this honourable court.
Upon obtainment of the letters of administration as aforesaid the respondent has embarked on a mission of mismanaging the estate of the deceased. In support of this contention is exhibit “EMW 2” – copies of minutes and revoked Power of Attorney endorsed by the deceased. The grant was obtained fraudulently hence this application.
The application has not been served as yet. In the circumstances, I order that this application be served upon M/s. Kiarie & Co. Advocates who are on record for the respondent, to respond to the same within 14 days of service. Thereafter a mutually agreed date be taken for inter-partes hearing.
Dated and delivered at Kitale this 3rd day of February, 2010.
N.R.O. OMBIJA.
JUDGE.
Mr. Bungei for applicant.