[2018] KEHC 3659 (KLR)
The court found that the applicant, Esther Ntiringa Mutwiri, had established that she was a daughter of the deceased and a rightful beneficiary who was excluded from the succession proceedings. The petitioners obtained the grant without disclosing all beneficiaries and proceeded to subdivide and attempt to dispose...
Source-derived case information.
- Citation
- [2018] KEHC 3659 (KLR)
- Parties
- Applicant: Margaret Mukomunene M’Ithambu; Applicant: James Mwirigi M’Itambu; Respondent: Esther Ntiringa Mutwiri
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 497 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- Application for revocation of grant allowed. Grant revoked. Subdivisions and transactions annulled.
- Legal Topics
- Revocation of Grant, Intestate Succession, Fraudulent Administration, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Mukomunene M’Ithambu
Applicant
James Mwirigi M’Itambu
Applicant
Esther Ntiringa Mutwiri
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration issued to Margaret Mukomunene and James Mwirigi should be revoked due to alleged fraud and non-disclosure of material facts.
- 2 Whether the applicant, Esther Ntiringa Mutwiri, is a rightful beneficiary of the deceased's estate and was excluded from the succession proceedings.
- 3 Whether the subdivisions and transfers of the estate property based on the revoked grant are valid.
Ratio Decidendi
The court found that the applicant, Esther Ntiringa Mutwiri, had established that she was a daughter of the deceased and a rightful beneficiary who was excluded from the succession proceedings. The petitioners obtained the grant without disclosing all beneficiaries and proceeded to subdivide and attempt to dispose of the estate property. The application for revocation was unopposed, and the evidence presented by the applicant and her witnesses was not challenged. The court held that the grant was obtained fraudulently and in contravention of the Law of Succession Act. Consequently, the grant issued to Margaret Mukomunene and James Mwirigi was revoked, all transactions arising from the...
Court Disposition
Application for revocation of grant allowed. Grant revoked. Subdivisions and transactions annulled.
Orders
- Grant made to Margaret Mukomunene and James Mwirigi is revoked.
- Any transaction arising from the grant is annulled and declared null and void ab initio.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 497 OF 2009
IN THE MATTER OF THE ESTATE OF M’ITAMBU M’RIMBITU - DECEASED
MARGARET MUKOMUNENE M’ITHAMBU...................1ST PETITIONER
JAMES MWIRIGI M’ITAMBU............................................2ND PETITIONER
VS
ESTHER NTIRINGA MUTWIRI............................OBJECTOR/APPLICANT
RULING
M’Itambu M’Rimbitu died intestate on 13th August 1995 and left behind one property L.R. No. Nyaki/giaki/653 measuring 5. 06 Ha. He was survived by a widow Margaret Mukomunene, 4 sons namely:-
Isaac Mugendi
James Mwirigi
Benard Kinoti
Terasisio Bundi
He was also survived by 4 daughters namely:-
Rose Kanana
Grace Kanyai
Judith karomi
Doreen Bundi
All the beneficiaries consented to the widow Margaret Mukomunene and James Mwirigi Petitioning for Letters of Administration. Grant was made on 28th January 2010 to Margaret Mukomunenen and James Mwirigi.
Application for confirmation dated 4th January 2011 was filed by the 2 Administrators who proposed mode of distribution as per paragraph 5 of the affidavit in support of application. The application is also supported by consent to confirmation and distribution shown to have been signed 9 people including 2 purchasers namely Jonathan Njoroge Joshua and Robert Mwiraria. Grant was confirmed on 19th September 2011 in presence of all beneficiaries except for Isaac Mugendi who was by then deceased.
Margaret Mukomunene got 2. 0 acres
James Mwirigi got 2. 00 acres
Benard Kinoti got 2. 00 acres
Taritisio Bundi got 2. 00 acres do hold in trust for Denis Muriuki Mugendi – Minor
Rose Kanana
Grace Kanyai Were to share one acre equally
Judith Karimi
Doreen Kaimuthi
Jonathan Njoroge -1. 50 acres
Robert Mwiraria 0. 50 acres
Jonathan Njoroge and Robert Mwiraria are purchasers.
On 11. 6.2013 Esther Ntiring’a filed an application dated 11. 6.2013 seeking that grant made on 28. 1.2010 and confirmed on 19. 9.2011 for reasons she is daughter to the deceased. She said she had been in occupation of suit land until when the petitioners threatened her with eviction and when she carried out a search she found out the Petitioners had fraudulently registered themselves as owners by filing petitions secretly. The applicant said that Margaret Mukomunene and James Mwirigi had proceeded to subdivide the original land into several parcels with an intention of disposing, alienating and transferring to third parties and disinherit her.
Directions were taken on 19. 12. 2016 that application for revocation be canvassed by way of written submissions. In submissions the applicant said that she and her mother and children are the direct beneficiaries to the estate of the deceased and that the petitioners were not direct beneficiaries to the estate of the deceased and that the petitioners were not direct beneficiaries. The petitioner didn’t respond to the application and didn’t file submissions as directed by the court.
It appears from the statements supporting applicants application that her uncle M’Itambu Rimbitu forged documents alleging he was also known as Mururu Rimbitu. The witness Stephen Kaai and Rufus Mutua said the applicant and her siblings Zachary Kimathi and Jane Karimi as well as deceased persons real widow Martha Regeru were the rightful beneficiaries to the estate.
As it stands now the application has not been opposed, same is allowed. Grant made to Margaret Mukomunene and James Mwirigi is hereby revoked and any transaction arising from the grant is annulled and is null and void ab initio. Sub-divisions of LR. Nyaki/Giaki/653 is annulled and resultant subdivisions to be cancelled and to revert to the name of the deceased. Costs of application to be paid by the petitioners.
HON. A.ONG’INJO
JUDGE
RULING SIGNED, DELIVERED AND DATED THIS 2nd DAY OF AUGUST 2018.
In the presence of:-
Petitioner:-Present in person.
Objector:- Mr Ondari Advocate for Mugambi for Objector
HON. A. ONG’INJO
JUDGE