[2022] KEHC 17190 (KLR)

In re Estate of Charles Rubia Wahome (Deceased) (Succession Cause 1 of 2017) [2022] KEHC 17190 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17190 (KLR)

Republic of Kenya

In the High Court at Garsen

Succession Cause 1 of 2017

SM Githinji, J

December 14, 2022

IN THE MATTER OF THE ESTATE OF CHARLES RUBIA WAHOME (DECEASED)

Between

Susan Mugure Rubia

1st Applicant

Margaret Anjiru Rubia

2nd Applicant

Jane Wangui Rubia

3rd Applicant

and

Teresa Wanjira Reuben

Respondent

Ruling

1. By way of summons for revocation of grant expressed under Section 47 and 76 of the Law of Succession Act, dated April 19, 2022 and filed on May 4, 2022, the Applicants seek the following orders:1. Spent.2. Spent.3. Spent.4. That the grant of letters of administration issued to the Respondent on May 30, 2017 and confirmed on October 21, 2021 and all consequent transactions arising therefrom including subsequent transfers and or subdivisions of Lamu/Lake Kenyatta I/739 comprising the deceased’s estate be revoked and/or annulled.5. That the Honourable court be pleased to issue a grant of letters of administration of the estate of the deceased herein to the 1st Applicant Susan Mugure Rubia, surviving daughter of the deceased and that the share of the deceased beneficiaries in the said estate be held in trust by the 1st Applicant for transmission to the respective estates of the deceased beneficiaries.6. That the costs of this application be provided for.

2. In support of the summons are the grounds enumerated thereon and the supporting affidavit sworn on April 19, 2022 by Susan Mugure Rubia who deposed that the deceased died on December 7, 2006 at Mpeketoni, Lamu County. The deceased was survived by his spouse, Wangechi Rubia, and seven children; four out of which and the widow are now deceased. The Applicants herein being the only surviving children of the deceased.

3. Susan added that prior to his death, the deceased had an extra marital affair with the Respondent who was his employee in his Mpeketoni home. According to Susan, the deceased never had a child with the Respondent. Upon his demise, the Respondent proceeded to obtain a grant of letters of administration without the knowledge of the surviving children. That part of the deceased’s estate comprised Land Parcel Lamu/Lake Kenyatta 1/739 which the Respondent has since subdivided and transferred to third parties.

4. To the Applicants, the grant issued and confirmed on May 30, 2017 and October 21, 2021 respectively, was obtained fraudulently by making false statements to the Honourable Court and concealment of material facts.

5. In response, the Respondent swore and filed a Replying Affidavit on May 25, 2022 and May 30, 2022 respectively. She deposed that land Lamu/Lake Kenyatta 1/739 was subdivided and sold by the deceased prior to his demise and in turn, used the proceeds to purchase other properties in Nyeri and Lamu Counties.

6. The Respondent added that the Applicants were all along aware of the succession cause filed by her, but never filed any objection since they were focused on the deceased’s properties in Nyeri County.

7. The summons for revocation of grant was canvassed by way of written submissions which I have carefully considered. I do find that the key issue for the Court's determination is whether the application meets the threshold for revocation or annulment of grant under Section 76 of the Law of Succession Act.

8. It is imperative in this matter, to point out the deceased whose estate is subject of this matter is said to have passed on, on December 7, 2006 after the Law of Succession Act (Chapter 160) Laws of Kenya (the Act) had commenced on July 1, 1981. Section 2(1) provides that: -“2. (1)Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act and to the administration of estates of those persons.”

9. Having said that, a party who wishes for a grant to be revoked must satisfy one or more of the grounds set out under section 76 of the Law of Succession Act which provides as follows: -“76Revocation or annulment of grantA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; oriv.that the grant has become useless and inoperative through subsequent circumstances.

10. Section 76 was expounded on by the court In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR where it was stated that:“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”

11. The Applicants invited the Court to revoke the grant issued to the Respondent stating that the proceedings to obtain the grant were based on concealment of material facts. It is the Applicants’ case that the Respondent failed to inform the court about existence of the children of the first wife. The applicants further contended that they were never informed of the succession proceedings herein despite the Respondent being aware of their interests as heirs of the deceased’s estate.

12. An examination of the proceedings in this matter reveals that the deceased prior to his death was a polygamous man. The Respondent admitted as much. She deposed that the deceased was first married to the Applicants’ mother and that they lived in Nyeri County.

13. It is also evident that neither the first wife nor her children were mentioned anywhere from the very onset. This fact was either intentionally or unintentionally concealed from this court. We cannot even tell whether the applicants were aware of this cause from the start; there is either no evidence to show that the Applicants consented to the issuance of the grant or that the Respondent issued a citation to the Applicants. The Respondent, prior to the confirmation, failed to make it known to the court that there were other survivors.

14. The Respondent’s argument that the Applicants were aware of the proceedings leading to the issuance of grant and confirmation but chose not to object for reasons that they were focused on the properties in Nyeri County is unfounded. The Respondent’s further argument that the deceased’s intention was to settle the Applicants and their mother in Nyeri does not matter.

15. In the circumstances, I find that there was concealment of material facts being non-disclosure of all survivors of the deceased prior to the issuance and confirmation of the grant of letters of administration.

16. The outcome is that the certificate of confirmation of grant dated March 3, 2021 is hereby revoked. Parties should commence the process afresh, involving all the beneficiaries to the deceased’s Estate.

RULING FOR GARSEN READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 14TH DAY OF DECEMBER, 2022. ...................................S M GITHINJIJUDGEIn the Presence of: -1. Mr Oduro for the Applicants2. Mr Komora for the Respondent