[2018] KEHC 5419 (KLR)
The court found that the applicants' signatures on the consent to the mode of distribution were different from those on the application, indicating forgery. The respondent who allegedly obtained the consent did not swear an affidavit to clarify the issue. The court held that the allegation of forgery was not...
Source-derived case information.
- Citation
- [2018] KEHC 5419 (KLR)
- Parties
- Applicant: Mildred Agunda; Applicant: Christine Agunda; Respondent: John Khakhundu Agunda; Respondent: Rodrick Khakhundu Agunda; Respondent: Wesley Nasio Agunda
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 412 of 2012
- Procedural Posture
- Probate and Administration / Ruling on Application for Revocation of Grant
- Outcome
- grant revoked
- Judges
- KW Kiarie
- Legal Topics
- Succession, Revocation of Grant, Forgery of Signatures, Administration of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mildred Agunda
Applicant
Christine Agunda
Applicant
John Khakhundu Agunda
Respondent
Rodrick Khakhundu Agunda
Respondent
Wesley Nasio Agunda
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of representation was obtained fraudulently by making a false statement or untrue allegation of fact essential in law to justify the grant.
- 2 Whether the signatures of the applicants were forged to give the impression of consent to the mode of distribution.
- 3 Whether the administrators failed to account for rent proceeds from the deceased's property.
Ratio Decidendi
The court found that the applicants' signatures on the consent to the mode of distribution were different from those on the application, indicating forgery. The respondent who allegedly obtained the consent did not swear an affidavit to clarify the issue. The court held that the allegation of forgery was not adequately responded to and that the grant was obtained on the basis of a false statement regarding the applicants' consent. The applicants did not prove lack of diligence in administration or failure to account for rent on a balance of probabilities. The grant was therefore revoked on the ground of forgery of consent signatures.
Court Disposition
grant revoked
Orders
- The grant of representation issued on 21st May 2013 is revoked.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
PROBATE & ADMINSTRATION NO. 412 OF 2012
IN THE ESTATE OF:-
MELITUS WANYAMA AGUNDA.....................................DECEASED
BETWEEN
1. MILDRED AGUNDA
2. CHRISTINE AGUNDA......................APPLICANTS/OBJECTORS
AND
1. JOHN KHAKHUNDU AGUNDA
2. RODRICK KHAKHUNDU AGUNDA
3. WESLEY NASIO AGUNDA.....PETITIONERS/RESPONDENTS
RULING
1. MILDRED AGUNDAandCHRISTINE AGUNDA, the applicants herein filed an application dated 10th August 2016 for revocation of the grant issued herein on 21st May 2013. The application was brought under section 78 of the Law of Succession Act, Cap. 160 Laws of Kenya. It is premised on the following grounds:
a) That the grant was issued on the basis of false affidavit that all beneficiaries had consented.
b) That the current administrators have further procured a false affidavit for confirmation of the grant.
c) That the current administrators have not accounted for rent proceeds from the Buru-Buru house of the deceased.
d) That the intended distribution of the estate is illegal and inequitable.
2. The application was opposed by the respondents on the following grounds:
a) That all beneficiaries, including the applicants, consented to the mode of distribution.
b) That the contention by the applicants that their signatures were forged is not true.
3. The applicants cited an inapplicable section of the law. Section 78 of the Law of Succession Act provides as follows:
For the purposes of this Act, a duplicate of any grant sealed with the seal of a court or other authority in a Commonwealth or foreign country, or a copy thereof certified as correct by, or duly on behalf of, that court or authority, shall have the same effect as the original.
The revocation of grants is provided for under section 76 of the Law of Succession Act.
4. In the matter of the Estate of Murathe Mwaria -deceased Nairobi HCCC NO.875/2005] Koome Jsummarised the grounds for revocation of a grant under Section 76 of the Law of Succession Act as follows:-
i. when the procedure followed in obtaining the grant is defective in substance.
ii. when the grant is obtained fraudulently by making a false statement.
iii. making an untrue allegation of fact essential in point of law to justify the grant.
iv. or when the person who has the grant has failed to proceed diligently with the administration of the estate.
5. I have perused the affidavits of both parties and two issues emerge. One, that the petitioners/respondents have not accounted for the rent of the Buru-Buru house rent and two, that the petitioners forged the signatures of the applicants to give an impression that they had signed.
6. The applicants have not proved on a balance of probabilities that the respondents have not been diligent in the administration of the estate.
7. An allegation of forgery is a serious one and requires to be responded to adequately. Rodrick Khakhudu Agunda who allegedly took the document for consent to the applicants did not swear an affidavit to clarify the issue. When I compared the signatures of the applicants in the application and the ones appended to the consent and alleged to be theirs, I find that they are different and one does not need to be an expert to notice so. On this ground I will allow the revocation of the grant. Each party to meet own costs.
DELIVERED and SIGNED at BUSIA this 17th day of July, 2018
KIARIE WAWERU KIARIE
JUDGE