[2022] KEHC 1881 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

SUCCESSION CAUSE NO. 130 OF 2017

IN THE MATTER OF THE ESTATE OF MARGARET WAMBUI KARIUKI (DECEASED)

RULING

1. For determination in this Ruling is the summons dated 12th November, 2018. The summons is filed by Naomi Nyamwathi Kairuki (Naomi). The summons are brought under the provisions of section 76 of the Law of Succession Act (Cap 160).

BACKGROUND

2. Margaret Wambui Kariuki deceased, whose estate is the subject of this Succession cause died on 13th August, 2005. Naomi petitioned before Gatundu Magistrate’s Court for grant of letters of administration intestate in respect to the estate of the said deceased as co-wife of the deceased.

3. That petition was gazetted on 26th January, 2007.

4. The daughter of the deceased Mary Wanjiru Karanja filed summons for extension of time to file her objection to the petition. On 29th April, 2013, the Gatundu Magistrate’s court Ruled that it had no jurisdiction to hear the succession cause because of the value of the estate. The matter was transferred to Muranga High Court and on 2nd November, 2016, it was transferred to this Court because the properties of the estate are within the Kiambu County.

5. Between the intervening period from the date Gatundu Magistrate’s court stated it did not have jurisdiction to hear the matter, Mary filed a petition for grant in respect to this estate at Family Division Milimani, being Succession Cause No. 1717 of 2014. It is to that petition the prayers of the application filed by Naomi are directed.

THE APPLICATION

6. The application dated 12th November, 2018 seeks the following prayers:-

a. Grant of representation to the estate of the deceased confirmed on 22nd day of September, 2015 in this cause be revoked.

b. Any titles or proprietorship issued subsequent and a result of the said confirmation of grant be cancelled.

c. The subsisting Succession Cause No. Succession Cause No. 130 of 2017 at Kiambu High Court proceeded to conclusion.

d. Any other order this Court may seem for a grant.

e. Costs be provided.

7. That application was filed in Milimani Succession cause NO. 1717 of 2014. The prayers in that application relates to the orders that were made in favour of Mary when she petitioned for grant in that court. Naomi seeks revocation of the grant issued to Mary in that cause.

8. Naomi seeks those orders on the grounds that Mary did not serve her with the petition which she filed in Milimani court; that Mary petitioned for grant before Milimani court when she was aware of the existence of this Cause; and Naomi further deponed:-

“That the same (sic) filing of a parallel succession cause by the petitioner (Mary) in the face of another existing cause is an act of sheer fraud.

That the purpose of filing succession cause was meant to disinherit me and completely conceal from me the proceedings.”

9. I have considered the parties submissions. The fact is that Mary was aware as she petitioned for grant before Milimani Court that there existed yet another succession cause. It is not an answer for Mary to allege that once the Gatundu Magistrate’s court stated it had no jurisdiction she was free to petition afresh. If Mary believed that the Gatundu Magistrate’s statement that, that court had no jurisdiction to entertain the petition, permitted her to file a fresh petition, she ought to have moved the Gatundu Magistrate’s court to either dismiss or strike out that petition before it so as to pave the way for a fresh petition to be filed. Mary was not permitted to file a fresh petition whilst the other one continued to subsist. The fact that that petition before the Gatundu Magistrate’s court was on record is clear from what the magistrate stated on 29th April,2 013 in the presence of all counsels. The magistrate stated:-

“I lack jurisdiction to hear this matter whose assets exceed Kshs.100,000. Case is adjourned. Parties to transfer the matter to the High Court.”

10. Mary was not candid therefore to state that once the Gatundu Magistrate’s court when it pronounced itself as lacking jurisdiction, it paved the way for fresh petition or grant to be filed. It is clear to this Court in filing a fresh petition for grant at Milimani court, Mary obtained a grant thereof fraudulently by making false statement or by concealing to the Milimani court the existence of the other succession cause which was material. Those acts of Mary fall squarely within the provisions of section 76 of the Law of Succession Act cap 160 as follows:-

“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;”

DISPOSITION

11. Accordingly, I grant the following orders:-

a) That the Grant of Letters of Administration intestate issued on 16th September, 2014 and the Certificate of Confirmation of grant issued on 22nd September, 2015 to Mary Wanjiru Karanja in High Court at Nairobi Succession Cause No. 17171 of 2014are hereby revoked and annulled as provided under Section 76 of Cap. 160.

b) The Nairobi High Court Succession cause No. 17171 of 2014 shall be held in abeyance until further orders of this Court.

c) This Succession Cause at Kiambu High Court Succession Cause No. 130 of 2017shall proceed to conclusion.

d) The costs to the application dated 12th November, 2018 are awarded to Naomi Nyamwathi Kariuki to be paid by Mary Wambui Karanja because Mary applied sharp practice in filing a fresh petition for grant.

e) At the reading of this Ruling, parties will be invited to file affidavit evidence to show the status of the estate properties, and whether they were transferred on the strength of the grants now revoked by this Ruling.

RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

CORAM:

COURT ASSISTANT : MAURICE

FOR APPLICANT NAOMI NYAMWATHI KARIUKI:- MR. MACHARIA

H/B MR. KIMWERE

FOR RESPONDENT MARY WAMBUI KARANJA: - N/A

RULING DELIVERED VIRTUALLY.

MARY KASANGO

JUDGE