[2013] KEHC 6564 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MILIMANI

SUCCESSION CAUSE NO. 214 OF 1992

IN THE MATTER OF THE ESTATE OF JULIUS WACHIRA -(DECEASED)

JUDGEMENT

This cause relates to the estate of Julius Wachira who died on 9th February 1981. He was survived by a widow, Melanie Wairimu, and ten children. He died possessed of several properties, among Loc.9/Kanyenyaini/574.

Representation to his estate was obtained on 3rd June 1992 by his widow, Melania Wairimu. She died on 11th November 1996, and the grant was amended on 30th September 2003 to substitute her with her children – Njoroge F.A. Wachira and Alois Mwangi Wachira. The grant was confirmed on the 29th September 2004.

On 28th October 2011, the applicants herein, Lucy Watiri Muburi and John Mwangi Muburi, filed a summons for revocation of grant dated 28th October 2011 seeking to have the grant in the matter revoked. They argued that it was not disclosed that the estate of Mathew Muburi Muya was entitled to a share of the family land, being Loc.9/Kanyenyaini/574.

The application is premised on Section 76(1) of the Law of Succession Act and Rule 44(1) of the Probate and Administration Rules. From the grounds on the face of the application and the facts set out in the affidavits in support, it is clear that the application falls within grounds (a) (b) and (c) of Section 76 which provide as follows:

“76. 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 the concealment from court of something material to the case;

(c) that the grant was obtained by means of an true allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently...”

The applicants appear to complain that the process of obtaining the grant was flawed and that there was non-disclosure relating to Loc.9/Kanyenyaini/574. To them this was family property. They have set out a history relating to this parcel of land, and state that the deceased held the property in trust for them.

A green card attached to the application shows that Loc.9/Kanyenyaini/574 was initially, in 1966, registered in favour of Mathew Muburi, as first registered owner, and the same in 1970 passed to J. Wachira Mateo Muiruri, who I presume to be the deceased person the subject of this cause. There was thereafter no transfer of the said property from his name till his death.

The petition filed in this case discloses Loc.9/Kanyenyaini/574 as an asset in the estate of the deceased, Julius Wachira. This conforms with the particulars in the green card. Since the property was registered in his name, he was the registered proprietor thereof in accordance with the provisions of the Registered Land Act, Cap 300, Laws of Kenya which governed the registration. The registration had not changed by the time of his demise, consequently the said property formed part of his estate. It was proper for the petitioners to list the said property as an asset in his estate. No defect has been demonstrated in the proceedings with respect to the said title, nor is there any evidence of concealment of material facts from the court.

The applicants claim existence of a trust in their favour. It could very well be that such a trust does exist. However, it is not for this court to declare it. None has been demonstrated by way of declaration by a court of competent jurisdiction. Ideally, the applicants ought to have moved a civil or land court to make a declaration of trust in their favour which they would then seek to enforce against the estate. In the absence of a declaration by a court, there is no basis upon which I can declare such a trust in a revocation of grant application.

There were proceedings before the Kangema Land Disputes Tribunal in Tribunal Land Dispute No. Loc. 19/Kanyenyaini/574, but the said tribunal did not declare a trust nor award the subject land to the applicants. The tribunal's decision dated last July 2011 and which was made decree of the Kangema Senior Resident's Magistrate's court on 7th July 2011 stated:-

“1. Both parties to file a fresh succession case number 214/1992 of 29th September 2004 in the matter deceased and confirmation grant to:

1. Lucy Watiri Muburi

2. Njoroge F.A. Wachira

2. The plaintiff in this case Lucy Watiri is not interested in any other properties owned by the late Julius Wachira Muburi apart from parcel No. Loc. 9/Kanyenyaini/574.

3. Both parties to meet the cost.”

To my mind, there is nothing in the above order/decrees, which declares a trust in Loc.9/Kanyenyaini/574 or awards any portion of the said land to the applicants.

A case for revocation of the grant made in this cause has not been made out. The application dated 28th October 2011 is hereby dismissed with costs.

SIGNED DATEDandDELIVEREDin open court this 30th day of August, 2013.

W.M. MUSYOKA

JUDGE