[2020] KEHC 9262 (KLR)
The court found that the petitioners failed to disclose the existence of the deceased's brothers, sisters, and a potential widow in their petition for grant of letters of administration intestate, in contravention of Section 51(2)(g) of the Law of Succession Act. This omission constituted material non-disclosure and...
Source-derived case information.
- Citation
- [2020] KEHC 9262 (KLR)
- Parties
- Applicant: Emmanuel Were; Applicant: Julius Were; Applicant: Diphrose Matengo Were; Applicant: Juliana Were; Applicant: Francis Florence Were; Applicant: Vincent Were; Respondent: Agnes Wairimu; Respondent: Maria Palma
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Cause 329 of 2008
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- grant recalled and fresh grant issued
- Judges
- AO Muchelule
- Legal Topics
- Succession, Grant Revocation, Material Non Disclosure, Fraudulent Petition, Dependants of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Were
Applicant
Julius Were
Applicant
Diphrose Matengo Were
Applicant
Juliana Were
Applicant
Francis Florence Were
Applicant
Vincent Were
Applicant
Agnes Wairimu
Respondent
Maria Palma
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration intestate was obtained fraudulently and in bad faith by the petitioners.
- 2 Whether the petitioners failed to disclose material facts, including the existence of other dependants and relatives of the deceased, in the petition for grant.
- 3 Whether the grant should be revoked or varied in light of the non-disclosure and alleged fraud.
Ratio Decidendi
The court found that the petitioners failed to disclose the existence of the deceased's brothers, sisters, and a potential widow in their petition for grant of letters of administration intestate, in contravention of Section 51(2)(g) of the Law of Succession Act. This omission constituted material non-disclosure and was deemed fraudulent conduct intended to gain an unfair advantage over the applicants. The court held that the grant was defective in substance and that the petitioners were guilty of material non-disclosure, warranting revocation of the grant. However, exercising its discretion, the court recalled the grant and issued a fresh grant in the joint names of the petitioners and...
Court Disposition
grant recalled and fresh grant issued
Orders
- The grant of letters of administration intestate issued to the petitioners on 13th November 2008 is recalled.
- A fresh grant of letters of administration intestate is issued in the joint names of Agnes Wairimu, Maria Palma, Emmanuel Were, and Diphrose Matengo Were.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 329 OF 2008
IN THE MATTER OF THE ESTATE OF MELITUS MUGABE WERE (DECEASED)
EMMANUEL WERE.....................................1ST INTERESTED PARTY/ APPLICANT
JULIUS WERE...............................................2ND INTERESTED PARTY/ APPLICANT
DIPHROSE MATENGO WERE.................3RD INTERESTED PARTY/ APPLICANT
JULIANA WERE...........................................4TH INTERESTED PARTY/ APPLICANT
FRANCIS FLORENCE WERE....................5TH INTERESTED PARTY/ APPLICANT
VINCENT WERE..........................................6TH INTERESTED PARTY/APPLICANT
VERSUS
AGNES WAIRIMU...................................................1ST PETITIONER/RESPONDENT
MARIA PALMA......................................................2ND PETITIONER/RESPONDENT
RULING
1. The deceased Melitus Mugabe Were died intestate on 29th January 2008. On 21st February 2008 the petitioners Agnes Wairimu and Maria Palma in their capacity as widows to the deceased petitioned for the grant of letters of administration intestate. The joint grant was issued on 13th November 2008. This is the grant that the interested parties/applicants Emmanuel Were, Julius Were, Diphrose Matengo Were, Juliana Were, Francisca Florence Were and Vincent Were (1st to 6th applicants, respectively) sought in the application dated 4th December 2008 that it be revoked, annulled and set aside.
2. It is not in dispute that the 1st, 2nd and 6th applicants are the brothers of the deceased. The 4th and 5th applicants are the sisters of the deceased. The 3rd applicant is said to be the widow of the deceased. In the supporting affidavit sworn by the 1st applicant, they denied that the 1st petitioner was a widow of the deceased. They complained that the petition had been filed, and the petition granted, without reference to them, and that this had been done when the petitioners knew that they existed. They stated that, prior to the petition, the petitioners had on 25th February 2008 applied for, and issued with, a special limited grant of letters of administration allowing them to withdraw Kshs.1,200,000/= from the deceased’s bank accounts to pay their children’s school fees. Upon finding out this, the applicants had on 27th February 2008 applied to be made parties to oppose the special limited grant. They had obtained an order to stay the grant. While the application was pending, the petitioners had secretly petitioned for, and obtained, the grant now subject of this application.
3. It was alleged that the grant had been obtained fraudulently, and in bad faith, with the aim of disinheriting them; that the petitioners had not disclosed to the court that they existed and were dependants of the estate of the deceased; the grant was being used to intermeddle in, and to waste, the estate of the deceased; and, lastly, that three of the children indicated in the petition to belong to the deceased were infact not his children.
4. The application was served on the petitioners but received no response.
5. Under section 51(2)(g) of the Law of Succession Act (Cap 160) the petitioners were required to include in the petition the names and addresses of all the spouses, children, parents, brothers and sisters of the deceased. In the petition they only indicated themselves and their children. The petitioners knew that the deceased had brothers and sisters. They knew that the 3rd applicant was claiming to be one of the widows of the deceased. They did not include this information in the petition, and did not issue any citations. I find that the conduct of the petitioners was fraudulent, intended to steal a march on the applicants. The petition was defective in substance and the petitioners were guilty of material non-disclosure. The grant is entitled to be revoked(In re Estate of Charles Ngotho Gachunga (Deceased) [2015]eKLR).
6. It is now trite that even where a party has made a case for the revocation of a grant, the court rather than revoke the grant may make orders to suit the particular circumstances of the case (In the matter of the Estate of Thareki Wangunyu aka Thareka Wangunyo (Nairobi H.C Succession Cause No. 1996 of 1999).
7. I consider that the court will, during the confirmation of the grant, determine the extent of the deceased’s estate, who the widows of the deceased are, who the deceased’s children are and whether the 1st, 2nd, 4th, 5th and 6th applicants were dependants of the deceased. Consequently, I recall the grant that was issued to the petitioners on 13th November 2008 and issue a fresh grant of letters of administration intestate tin the joint names of Agnes Wairimu, Maria Palma, Emmanuel Were and Diphrose Matengo Were.
8. In view of the age of this dispute, I direct that within 60 days the holders of the new grant, or any one of them, shall apply for the confirmation of the grant. A response to the same shall be filed within 14 days. The file be mentioned on 30th March 2020 for directions.
9. Costs shall be in the cause.
DATED and DELIVERED at NAIROBI this 28TH day of JANUARY, 2020
A.O. MUCHELULE
JUDGE