[2018] KEHC 3789 (KLR)
The court found that the applicant raised serious allegations of fraud and non-disclosure in the obtaining and confirmation of the grant in Kapsabet SPM Succession Cause No. 46 of 2016. The applicant provided evidence that he and other beneficiaries were excluded from the distribution of the estate and did not...
Source-derived case information.
- Citation
- [2018] KEHC 3789 (KLR)
- Parties
- Respondent: Grace Muhambe Madegwa; Applicant: Solomon Mandegwa Aganyanya
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 26 of 2018
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Summons for Revocation or Annulment of Grant
- Outcome
- Interlocutory order; no final determination on revocation or annulment of grant pending perusal of lower court file.
- Judges
- DO Ohungo
- Legal Topics
- Succession Proceedings, Revocation of Grant, Fraud in Obtaining Grant, Non Disclosure of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Muhambe Madegwa
Respondent
Solomon Mandegwa Aganyanya
Applicant
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Summons for Revocation or Annulment of Grant
Legal Issues
- 1 Whether the grant of letters of administration and certificate of confirmation issued in Kapsabet SPM Succession Cause No. 46 of 2016 should be revoked or annulled due to alleged fraud and non-disclosure of material facts.
- 2 Whether the applicant and other beneficiaries were excluded from the distribution of the deceased's estate without proper notice or consent.
- 3 Whether the proceedings in the lower court were defective in substance.
Ratio Decidendi
The court found that the applicant raised serious allegations of fraud and non-disclosure in the obtaining and confirmation of the grant in Kapsabet SPM Succession Cause No. 46 of 2016. The applicant provided evidence that he and other beneficiaries were excluded from the distribution of the estate and did not consent to the grant, contrary to the requirements of the law. The respondent failed to respond to the application or attend the hearing, leaving the applicant's claims unchallenged. The court determined that it was necessary to call for the original file from the lower court to peruse the proceedings and documents before making a final determination on the revocation or annulment...
Court Disposition
Interlocutory order; no final determination on revocation or annulment of grant pending perusal of lower court file.
Orders
- The Deputy Registrar is directed to immediately call for Kapsabet P & A Succession Cause No. 46 of 2016 within 5 days.
- The said file to be placed before the judge for perusal and further orders to be issued on 11th October, 2018.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
MISC. SUCCESSION CAUSE NO. 26 OF 2018
RE ESTATE OF MARK MADEGWA LIHALO (DECEASED)
GRACE MUHAMBE MADEGWA............................PETITIONER
VERSUS
SOLOMON MANDEGWA AGANYANYA................OBJECTOR
RULING
1. The summons for revocation or annulment of grant is dated 3rd September 2018 and urges this court to order a temporary stay of execution of the certificate of confirmation of grant issued on 18th July 2017. Further that the court do call for Kapsabet SPM SUCC. Cause No.46 of 2016 so as to make further orders.
Upon such perusal then the confirmed grant in the Kapsabet Cause No.46 of 2016 be revoked and/or annulled.
2. The application is premised on ground that the proceedings in the Kapsabet Cause were defective in substance and the grant was obtained fraudulently by the petitioner who made false statements and concealed material facts from the court.
3. Further that the grant should not have been confirmed without the applicant being notified.
4. The applicant deposed in his Supporting Affidavit that the late MARK MADEGWA LIHALO was his father while the Petitioner/Respondent, one GRACE MUHAMBE MADEGWA is his step – mother. When she petitioned for grant of letters of administration she presented to the court a document purporting signed by all the beneficiaries, yet there was no such consent, obtained nor were the beneficiaries present at the confirmation. It is the appellant’s contention that the Petitioner never served him with any papers relating to the cause much less any document regarding the beneficiaries to indicate their consent by signing.
5. The applicant is of the view that the petitioner intended to deny him his rightful inheritance from his father’s estate, pointing out that the petitioner did not apportion to him any share. Upon realizing what was going on, a family meeting was convened and that is when the applicant sought the services of share out the land. He then learnt that the land had already been distributed to other people through the succession proceedings.
6. The applicant has reported the matter of fraud to police as per the letter dated 18th August 2017 signed by ABUYEKA ARIWO for the Directorate of Criminal Investigation – NANDI CENTRAL which is addressed to Senior Principal Magistrate at Kapsabet Law Courts and reads SUCCESSION CAUSE NO.46 OF 2016 NANDI/KAPKANGANI/2302
“We write to inform you that we are in receipt of a complain (Sic) in respect of the above indicated parcel kindly but urgently furnish us with documents used in filing the above mentioned Succession cause to enable us arrive at a fair determination of this matter.”
7. Although the applicant had presented a letter from the chief listing all the deceased’s beneficiaries, when the certificate of confirmation of grant was issued the property NANDI/KAPKANGANI/2302 was distributed among the persons named in the chiefs’ letter but excluded the applicant and four other family members.
She also presented form P & A 38 (consent to the making of the grant) which was purportedly signed by all the beneficiaries to the estate conceding the petitioner apply for grant of administration. This is what he denies signing.
It is of course instructive that the Respondent filed no response nor did she attend hearing of the said consent did not contain any proposed mode of distribution. It is therefore imperative that Kapsabet P & A Succ. Cause No. 46 of 2016 be availed to enable me peruse and clarify a few concerns, before making a conclusion, By a copy of this ruling the Deputy Registrar is directed to immediately call for the said Kapsabet P & a Cause within 5 days hereof and the same be placed on my desk for perusal and further orders to be issued on 11th October, 2018.
DATED, SIGNED and DELIVERED at ELDORET this 28th day of September2018.
H. A. OMONDI
JUDGE