[2019] KEHC 4243 (KLR)
The court found that the applicant, as a child of the deceased, had established that the respondent was not related to the deceased and had obtained the grant through fraudulent means, including the use of a forged introductory letter. The respondent failed to contest these serious allegations despite being served...
Source-derived case information.
- Citation
- [2019] KEHC 4243 (KLR)
- Parties
- Applicant: Daniel Machage Chacha; Respondent: Peter Magabe Mwita
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 283 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Revocation of Grant
- Outcome
- application for revocation of grant allowed
- Judges
- AC Mrima
- Legal Topics
- Revocation of Grant, Probate and Administration, Fraudulent Obtainment of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Machage Chacha
Applicant
Peter Magabe Mwita
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration to Peter Magabe Mwita was obtained fraudulently.
- 2 Whether the proceedings leading to the grant were fatally defective.
- 3 Whether the applicant, as a child of the deceased, is entitled to the grant.
Ratio Decidendi
The court found that the applicant, as a child of the deceased, had established that the respondent was not related to the deceased and had obtained the grant through fraudulent means, including the use of a forged introductory letter. The respondent failed to contest these serious allegations despite being served and given ample opportunity. The proceedings leading to the grant were therefore fatally defective. Consequently, the court revoked the grant and the certificate of confirmation issued to the respondent and ordered that a fresh grant be issued in the applicant's name.
Court Disposition
application for revocation of grant allowed
Orders
- The Grant of Letters of Administration made to Peter Magabe Mwita on 09/11/2015 and the resultant Certificate of Confirmation are revoked.
- A fresh grant shall issue in the name of Daniel Machage Chacha.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
MISC. SUCCESSION CAUSE NO. 283 OF 2015
(Consolidated with Misc. Application No. 20 of 2017)
IN THE MATTER OF THE ESTATE OF CHACHA MACHAGE (DECEASED)
BETWEEN
DANIEL MACHAGE CHACHA...............................................OBJECTOR/APLICANT
VERSUS
PETER MAGABE MWITA…………..............................PETITIONER/RESPONDENT
RULING
1. By the Chamber Summons dated 27/07/2017 and filed on 31/07/2017 the Applicant herein applied for the revocation of the grant of the representation in respect of the Estate of Chacha Machage (hereinafter referred to as ‘the deceased’) which was issued to Peter Magabe Mwita, the Respondent herein and who is the Petitioner on 09/11/2015. The Petitioner described himself as a grandson to the deceased.
2. That grant was eventually confirmed by this Court on 06/03/2017 and the sole estate property namely Nyabasi/Bomerani/402 was wholly transferred to the Petitioner.
3. The Applicant who is one of the three children of the deceased contends that the Petitioner obtained the grant fraudulently as he is not in any way related to the deceased. He cited the entire proceedings as fatally defective and the introductory letter by the Chief as a forgery. The application was served upon the Petitioner and despite given ample time to file his response and submissions in the face of the very grave allegations nothing came forth. The application therefore stands unopposed.
4. With such state of affairs, the application must succeed. To that end the following orders do hereby issue: -
(a) The Grant of Letters of Administration made toPeter Magabe Mwita on09/11/2015and the resultant Certificate of Confirmationbe and are hereby revoked and a Fresh Grant shall issue in the name ofDANIELMACHAGE CHACHA.
(b) The Administrator shall file and serve an application for confirmation of the fresh grant within 30 days of its issuance. The application shall be fixed for hearing on 06/11/2019.
(c) The Petitioner shall bear the costs of the application.
Orders accordingly.
DELIVERED, DATED and SIGNED at MIGORI this 19th day of September 2019.
A. C. MRIMA
JUDGE
Ruling delivered in open Court and in the presence of:
Mr. Kwanga MboyaCounsel instructed by Messrs. Kwanga Mboya & Company Advocates for the Applicant.
Mr. Kerario MarwaCounsel instructed by Messrs. Kerario Marwa & Company Advocates for the Respondent.
Evelyne Nyauke – Court Assistant