[2022] KEHC 16238 (KLR)

In re Estate of Ikunyua M'muhambi (Deceased) (Succession Cause 187 of 1992) [2022] KEHC 16238 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16238 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 187 of 1992

TW Cherere, J

December 15, 2022

IN THE MATTER OF THE ESTATE OF IKUNYUA M’MUHAMBI (DECEASED)

Between

Maritha Ngugi Kaguongo

Applicant

and

Isabera Nchurubi Marete

Respondent

Ruling

1. Maritha Ngugi Kaguongo (protestor/applicant) daughter of deceased by summons for revocation dated February 22, 2022 seeks the following orders:1. The honourable court be pleased to grant an order revoke or annul the grant of letters of administration confirmed on July 21, 2021. 2.That the costs of this Application be provided for.

2. The application and supporting affidavit sworn by the Applicant are founded on the grounds that the petitioner moved the court secretly without the applicant’s knowledge and obtained the grant fraudulently by making false statements and he did not list all the beneficiaries as he left out daughters of the deceased the applicant herein and her sister Kithiira M’Ikunyua (deceased). By her further affidavit sworn and filed on June 13, 2022, applicant avers that LR Abothuguchi/Gaitu/54 was not distributed as ordered by the court and in support thereof has annexed a search certificate in the name of Paul Mwirigi M’Ikunyua and three others.

3. The summons is supported by Isabera Nyoroka Mwirigi who an affidavit sworn on November 3, 2022 avers that LR Abothuguchi/Gaitu/54 ought to have been distributed to her as widow of deceased’s widow of the late Marete M’Ikunyua since the deceased had gifted LR Abothuguchi/Kariene/546 to the Administratrix’s husband Paul Mwirigi M’Ikunyua (deceased’s son).

4. The application was opposed by the respondent Isabera Nchurubi Marete who by her affidavit sworn on March 29, 2022 avers that the court was informed concerning the daughters of the deceased but distributed the estate to sons only. She also faults the Applicant who has been aware of this cause for coming to court over 30 years since the cause was filed.

Analysis and determination 5. I have considered the application in the light of the affidavits, oral evidence by the Protestor and Petitioner and her two witnesses and submissions

6. Circumstances under which a grant can be revoked were restated in the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR that;The circumstances that can lead to the revocation of grant have been set out in section 76 Law of Succession. For a grant to be revoked either on the application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.

7. Before determining whether a case has been made out for revocation of the grant in this matter, I find that it would of great importance to recollect the history of this matter that led to distribution of the estate that protestor now grumbles about.

8. By summons dated November 6, 2006, Saberina Ncurubu M’Marete d/o Ikunyua Mugambi (deceased) applied for confirmation and proposed that LR Abothuguchi/Gaitu/54 be shared equally between her and Paul Mwirigi M’Ikunyua (deceased’s son).

9. In his affidavit of protest filed on May 10, 2019, Paul Mwirigi M’Ikunyua listed the names of widow and children of the deceased who included three sons and three daughters one being the Protestor herein. He proposed that LR Abothuguchi/Gaitu/54 be wholly distributed to him. The protest was also supported by the protestor herein by her affidavit sworn on July 15, 2019 in which she disclosed that she was one of the daughters of the deceased.

10. On January 23, 2020, Ongíjo J after hearing the protest filed by Isabera Nchurubi Marete widow of the late Marete M’Ikunyua s/o the deceased, determined that LR Abothuguchi/Gaitu/546 in the name of Marete Ikunyua was not a gift intervivos and directed that LR Abothuguchi/Gaitu/54 be shared equally between Paul Mwirigi M’Ikunyua (deceased’s son) and Isabera Nchurubi Marete widow of the late Marete M’Ikunyua.

11. From the evidence contained in the court record, the ownership of LR Abothuguchi/Gaitu/546 has already been determined as stated at paragraph 10 of this ruling. It is also on record that the court was well aware that the deceased was survived by sons and daughters and the Applicant’s allegation that his brother Paul Mwirigi M’Ikunyua filed the cause secretly and failed to disclose to court that deceased was survived by daughters cannot therefore be truthful. This court therefore finds that the issues raised in this application are res judicata and can only be reopened on appeal.

12. Consequently, I find that protestor has failed to demonstrate within the purview of section 76 of the Law of Succession Act as restated in Moses Wachira Kimotho [2009] eKLR, Japheth Kaimenyi M’Ndatho v M’Ndatho M’mwiria [2014] eKLR and Re-estate of Magangi Obuki (Deceased) [2020] eKLR that the grant was fraudulently obtained and that there was concealment of material facts and misrepresentation.

13. In conclusion, a search certificate tendered before the court discloses that LR Abothuguchi/Gaitu/54 was not distributed as ordered by the court but was instead distributed to Paul Mwirigi M’Ikunyua and three others.

14. Consequently, it is hereby ordered:1. No case has been made out for the revocation of the grant herein.2. The summons for revocation dated February 22, 2022 lacks merit and the same is hence dismissed with costs to the respondent.3. The Land Registrar Meru is directed to cancel title for LR Abothuguchi/Gaitu/54 issued in the name of John Kiija, Erick Mugambi, Amos Mutembei Kinyua and Paul Mwirigi M’Ikunyua and revert it to the name of the deceased Ikunyua M’muhambi4. The administratrix has 60 days from the date hereof to ensure distribution of LR Abothuguchi/Gaitu/54 to the estate of Paul Mwirigi M’Ikunyua and Isabera Nchurubi Marete in equal shares5. Mention on March 21, 2023 to confirm distribution and for further orders

DATED AT MERU THIS 15THDAY OF DECEMBER, 2022. WAMAE TW CHEREREJUDGEAppearancesCourt assistant - Morris KinotiFor applicant - Mr Otieno for Otieno C & Co AdvocatesFor respondent - Mr Kariuki for Mithega & Kariuki Advocates