[2022] KEHC 14842 (KLR)

In re Estate of Jackson Karui Githinji (Deceased) (Succession Cause 46 of 1985) [2022] KEHC 14842 (KLR) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14842 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 46 of 1985

JN Njagi, J

November 2, 2022

IN THE MATTER OF THE ESTATE OF JACKSON KARUI GITHINJI (DCD) MWANGI KARUI ............................PETITIONER/ RESPONDENT VERSUS GEORGE MUNDIA KARUI..................................1ST APPLICANT MARY WANJIKU KARUI....................................2ND APPLICANT

Ruling

1. The 2nd applicant has filed summons for revocation of grant dated August 27, 2019 seeking that the confirmation of grant of the estate of the deceased herein issued to the respondent herein be revoked on the grounds that: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.

2. The application was based on grounds on the face of the application and supported by the annexed affidavit of Mary Wanjiku Karui, the 2nd applicant. The applicant contends that the grant was obtained fraudulently by making of false statements and concealment from the court that the respondents named in the certificate of grant were the only beneficiaries who survived the deceased and that the subject property of the estate was trust land.

3. The summons for revocation of grant were opposed by the respondent vide his replying affidavit sworn on December 23, 2021. The respondent avers that the application is without merit and is an abuse of the process of the court. That this is not the first time the applicants have filed applications in this matter making similar allegations and seeking same orders which applications have been dismissed. That the 2nd applicant was a witness for the 1st applicant in an application of similar nature dated January 8, 2009 that was dismissed by Makhandia J. (as he then was) on the March 22, 2010. That while giving evidence in that application the 1st applicant confirmed that she had full knowledge of the filing and confirmation of the succession cause. She confirmed that her mother had called for a family meeting over the succession cause in which she was in attendance. That she admitted that she had previously sued the respondent over the matter.

4. The respondent further contended that the applicants have previously filed several applications on the same issue some of which are still pending in court while others have been dismissed. That the 2nd applicant had filed ELC Case No. 194 of 2019 at Kerugoya court which has also been dismissed. That the applicants are vexatious characters and the instant application should be dismissed.

5. The parties canvassed the application by way of written submissions. The advocates for the 2nd applicant in their submissions reiterated the contents of the supporting affidavit. Counsel for the respondent relied on the evidence of the 2nd applicant adduced during the hearing of the application dated January 8, 2009 in which the applicant admitted that she had full knowledge of the filing of the succession cause. Therefore, that the court has pronounced itself on the issues being raised by the 2nd applicant in the instant application.

6. I have considered the court record, the affidavits, the annexures and the submissions of the learned counsels for the parties. The issue for determination is whether the application is merited.

7. The application is brought under section 76 of the Law of Succession Act which provides that:“A 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;...

8. The court has in the first place to observe that a brother to the applicant, George Mundia Karui who is also a party in these proceedings, had filed a similar application dated 8/1/2009 wherein the applicant appeared as a witness for her said brother. The grounds of that application as in the instant application were that the grant was obtained fraudulently by making of false statement or concealment from the court something material to the case in that the petitioner had neglected to disclose to the court that the deceased had other dependents. The 2nd applicant in the instant application makes reliance on a similar ground that the respondents named in the certificate of confirmation of grant were not the only beneficiaries who survived the deceased. It was also based on the contention that the suit property was trust land.

9. The 2nd applicant appeared as a witness in the application dated 8/1/2009 and told the court that she was made aware when the petition was filed. She also admitted that her mother had convened a meeting to discuss about the succession cause. It is then clear that the 2nd applicant was aware of the petition since its inception. She must have been aware that the application dated 8/1/2009 was dismissed by Justice Makhandia on the 22/3/2010. If she was aggrieved by the dismissal she has not explained why she stayed for close to 10 years before filing the instant application. An application for revocation of grant is a discretionary relief and like all discretionary reliefs, it must be filed without unreasonable delay. In my view a delay of close to 10 years is inordinate and inexcusable. The applicant is guilty of latches.

10. The applicant was an interested party in the succession cause. The grant that she is challenging was confirmed on the 20/8/1987. After the dismissal of the application dated 8/1/2009 she did not seek to appeal against the decision as an interested party. The law is that delay defeats equity. It is now too late in the day for the applicant to seek to challenge orders issued about 39 years ago yet she has been aware of the orders all these years.

11. The applicant also is basing her application on the ground that the respondent was holding the subject land in trust of the family. This court being a Probate Court has no jurisdiction to deal with trusts. That ground should therefore be taken to the court with the requisite jurisdiction.

12. The upshot is that I do not find merit in the summons for revocation of grant dated 29/8/2019. Consequently, the application is dismissed with costs to the respondent.

SIGNED THIS 14TH DAY OF SEPTEMBER 2022. J. N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF NOVEMBER, 2022. Signed By:HON. JUSTICE M. MUYAJUDGEIn the presence of:Mrs Wanjala for Gori for Petitioner/RespondentIn person for 2nd ApplicantCourt Assistant: Kinyua30 days R/A.