[2019] KEHC 11335 (KLR)
The court found that the applicant was aware of and had consented to the petition and distribution of the estate, as evidenced by his signature on the petition and lack of objection during the confirmation of the grant. The applicant did not dispute being present at the confirmation or the subsequent substitution of...
Source-derived case information.
- Citation
- [2019] KEHC 11335 (KLR)
- Parties
- Applicant: Joseph Muthiura Muru; Respondent: George Kahugu Chege
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 242 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule, JO Nyarangi
- Legal Topics
- Succession, Revocation of Grant, Gift Inter Vivos, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Muthiura Muru
Applicant
George Kahugu Chege
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration and certificate of confirmation should be revoked due to alleged non-involvement and non-disclosure by the applicant.
- 2 Whether the deceased had made a valid gift inter vivos of Gachororo Farmers Certificate Ltd No. 197 to the applicant prior to her death.
- 3 Whether the applicant was aware of and consented to the distribution of the estate as confirmed by the court.
Ratio Decidendi
The court found that the applicant was aware of and had consented to the petition and distribution of the estate, as evidenced by his signature on the petition and lack of objection during the confirmation of the grant. The applicant did not dispute being present at the confirmation or the subsequent substitution of the administrator. The alleged gift inter vivos was not completed before the deceased's death, as the transfer was not finalized. The applicant's delay in bringing the application and failure to raise objections at earlier stages indicated that the application was an afterthought. The court accepted the respondent's version of events and found no basis for revocation of the...
Court Disposition
application dismissed with costs
Orders
- The application for revocation of grant is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 242 OF 2004
IN THE MATTER OF THE ESTATE OF JULIA WAMBUI KAHUGU – (DECEASED)
JOSEPH MUTHIORA MURU.......................APPLICANT
VERSUS
GEORGE KAHUGU CHEGE....................RESPONDENT
RULING
1. The deceased Julia Wambui Kahugu alias Wambui Kahugu alias Wambui Kahugo died intestate on 25th November 1998 at Juja. She was survived by her husband Muru Mbatia (the widower) and her six sons Benson Guchu Chege, John Kimani Muru, Ndungu Chege, George Kahugu Chege (the respondent), Peter Kinuthia Chege and Joseph Muthiura Muru (the applicant). The widower filed Succession Cause No. 116 of 2000at the Chief Magistrate’s Court at Thika seeking grant of letters of administration intestate. A grant was issued on 3rd July 2000 and confirmed on 27th February 2001. In the certificate each of the children were to equally share Juja/Kiaura Block 1/173. The remaining two parcels were to be shared equally among all the children except John Kimani Muru. The sharing was in accordance with the proposal in the affidavit sworn by the widower in support of the application for the confirmation of grant.
2. The widower died on 3rd December 2001. The children sat and signed a document allowing one of them (the respondent) to apply for the amendment of the grant and certificate of confirmation so that he would take over as the administrator of the estate. The respondent filed the application on 4th June 2002. The same was allowed and a fresh grant and certificate of confirmation were issued on 12th June 2002. The shares in the certificate remained the same.
3. On 29th January 2004 the applicant filed the present application seeking to have the grants revoked. The reasons were that he had not been consulted and involved in the petition and distribution of the estate; that the deceased (his mother) had before death gifted her the parcel in Gachororo Farmers Certificate Ltd No. 197 and yet this information had been concealed from the court at the time of the distribution, something that was both fraudulent and amounted to material non-disclosure. In support of the said gift intervivos he annexed a document which showed that the deceased was a shareholder of Gachororo Farmers Ltd, and was holder by share certificate No. 197, and that on 19th June 1996 she signed to transfer the same share to him. He stated that the deceased died before the transfer was finalised. Mwaura Ngugi was the chairman of the company. He deponed that indeed the transfer had not been finalised.
4. The respondent opposed the application. In his replying affidavit, he stated that the applicant consented to their father petitioning for the grant of letters of administration. Indeed it is true that the applicant signed the petition. On the distribution, the respondent stated that all the time that their father was alive it was known that the estate was going to be shared as above. This is why, he went on, when their father shared the estate during confirmation the applicant had no issue; that he was, infact, in court when the estate was shared at confirmation. The respondent further stated that when the deceased was transferring the parcel of land in issue to the applicant, it was for him to keep it for the sharing by all the brothers.
5. I have indicated that the widower died on 3rd December 2001. The grant had been confirmed on 27th February 2001. The applicant does not say he did not know about the confirmation. He did not swear a further affidavit to say he was not in court when the grant was confirmed, and the distribution done. When he subsequently consented to having the respondent substitute their father as the administrator, the certificate of confirmation that they were seeking to amend was there and showed the parcel in dispute had been shared among them. He did not raise a finger. A fresh certificate came out on 12th June 2002. He did nothing. It took him about two years to bring the instant application.
6. I have considered all the evidence and documents that were placed in court in respect of this application. I accept the version by the respondent and reject that by the applicant. I find that the application is an afterthought. It is consequently dismissed with costs.
DATED and SIGNED at NAIROBI this 22ND day of MAY 2019
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at NAIROBI this 27TH day of MAY 2019
J.N. ONYIEGO
JUDGE