[2018] KEHC 3712 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 415 OF 2005

IN THE MATTER OF ESTATE OF KIAMBI ANONGO - (DECEASED)

DOMINIC MUTUA NKUMARI..................PETITIONER/ RESPONDENT

VS

NORU ABDULLAMAN....................INTERESTED PARTY/APPLICANT

RULING

Application dated 9th February 2016 sought that grant issued to Dominic Mutua Nkumari be revoked and L.R. No. Abothuguchi/Mariene/707 reverts to the estate of the deceased Kiambati Anongo.

The Chief of Mariene Location in the letter dated 8th September 2008 gave list of the deceased persons dependants beneficiaries as follows:-

a. Zipporah Kogorwe

b. Eunice Kaimenyi

c. M’Ajogi Kiambati

d. Samson Mwiti

e. Mutuma M’Ajogi

f. Dominico Mutua Nkumari

g. Zaverio Mwirigi

He also identified parcel No. L.R. Abothuguchi/Mariene/706 as the one forming the net intestate estate. Dominicio Mutua Nkumari petitioned for Letters of Administration with the consent of the deceased wife and children. Grant was made on 25th September 2008 and confirmed on 27th May 2014 devolving the entire estate to the Administrator. Noru Abdullaman filed application dated 9th February 2016 on the ground the deceased who was his biological father converted to Islam and acquired the name Abdullaman and his children were Inducted into Islamic faith. He said he and his deceased brother Hemed Abdullaman Kiambati is survived by several children. He claimed the Administrator and the beneficiaries listed inthe succession cause were not related to the deceased. He said the subject parcel is located in Nyweri Location as per the chiefs letter dated 21. 12. 2015 – NA III.

It was averred that the petitioner obtained grant fraudulently and is not in occupation of the suit land and has never utilized the same. It was argued that the Administrators interest is to dispose of suit land as buyers have been seen walking around the land.

In reply Dominic Mutua Nkumari swore an affidavit on 16th November 2017 saying applicant sold to him land to M’Anjogi M’Aburu that Kshs 750 in 1969.

That the dispute over sale of land between M’Anjogi and the applicant was heard in LDTC No. 54 of 2004. The determination is that applicant Noru Abdullaman could not sell his fathers land without consent of the father and his brother. He claims that Mr M’Anjogi M’Aburi and his wife together with their children now beneficiaries took possession of suit land and started planting coffee trees and gravelia trees. He said the chief refused to give him a letter authorising him to petition for letters and he swore an affidavit to that effect. Administrator said that applicant told him there was no need to have his name in the petition since he had sold the land was not interested. He said he was not aware it was necessary to have applicants name in the petition. He said it was false for applicant to say petition was filed secretly as he had been living on the land since 1969. He said applicant was guilty of non disclosure of material fact. The Administrator in this matter relied on annexture DMN1 to prove that applicant sold land to M’Anjogi M’Aburi but the conclusion in the annexture is that the applicant could not sell the deceased fathers land without consent from the father and the brother.

The Administrator has also said that he did pay further consideration of Kshs 900,000/= to the applicant in company of the children of M’Anjogi M’Aburi but apart from the fact that there is no such evidence, neither the applicant nor the children of M’Anjogi had the capacity to dispose property belonging to an estate without the final grant of confirmation.

The Administrator Dominic Mutua Nkumari does not explain his relationship with the deceased in a forthright manner. In affidavit sworn on 15th July 2005 – annexture DMN2 he introduces himself as son to the deceased and claims the chief of his location had refused to give him a letter of introduction.

Upon consideration of the application dated 9th February 2016 the supporting affidavit and in consideration of the Reply by the petitioner and Submissions filed by applicants counsel this concludes that the petitioner conducted himself in a fraudulent manner with intention of disinheriting the rightful beneficiaries of the estate. Even when the chief of his location declined to grant him Letters he lied in an affidavit that he was son to the deceased. He committed the offence of perjury to acquire the property fraudulently.

The grant made to Dominic Mutua Nkumari can’t stand same is revoked and any transactions arising there from are annulled. The registration of parcel No. Abothuguchi/Mariene/706 to revert to the name of the deceased. The Chief Nyweri Location and Mariene Location to attend court and identify rightful beneficiaries to the estate of the deceased. All beneficiaries also to attend court and identify rightful beneficiaries to the estate of the deceased. All beneficiaries also to attend.

HON. A.ONG’INJO

JUDGE

RULING DELIVERED, SIGNED AND DATED THIS 2ND DAY OF AUGUST 2018

IN THE PRESENCE OF:

C/A:- Penina

Petitioner/Respondent: -

Objector/Applicant:-

HON. A.ONG’INJO

JUDGE