[2018] KEHC 3698 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 259 OF 1994

IN THE MATTER OF ESTATE OF M’KWARIA MBUKIA ALIAS KWARIA KIUJO MBUKIA - (DECEASED)

JULIUS KATHIA KIUJO.........................................PETITIONER

VERSUS

M’MWARANIA KWARIA..........................................OBJECTOR

JAPHET GIKUNDA M’NKANATA.........................APPLICANT

RULING

Before this court is an application dated 11th November, 2015 by Florence Nyegera (Now deceased and substituted by her daughter) sought that grant made to Julius Kathia and confirmed on 5th October 1998 be revoked for reasons that the consents of the daughters of the deceased herein inter alia Florence Nyegera and Esther Karai were not sought by the administrator when petitioning for Letters of Administration and yet they ranked in equal priority.

The petitioner claims that the deceased indicated his wishes as to how he wanted his estate distributed. He had given his son’s portion of L.R/Nkuene/L.Mikumbune/74 except Benard Mwarania who got L.R. Abogeta/L.chure/541 exclusively. He also stated that the same should not claim his inheritance anywhere else.

For avoidance at doubt, the following were identified as beneficiaries:-

1st house

1. Bernard Mwarania

2. Mugure(Deceased)

3. Esther Karai

4. Florence Nyegera

2nd House

1. Morris Kiruki

2. Francis Riungu

3. Thomas Kinyira

4. Jackson Muriungi

3rd House

1. Douglas Kinguru

2. Patrick Mwiti

4th House

1. Julius Kathia

2. Erastus

3. Paul

4. Gatura(Deceased)

5. Gacheri (Deceased)

Further the following were identified as properties of the deceased estate:

1. L.R/Nkuene /L.Mikumbune/74

2. L.R/Nkuene/L.Mikumbune/483

3. Abogeta/U-Chure/541

4. L.R. Miueni/Mikabune/498

The main issues for determination are:-

1. Revocation or annulment of the grant confirmed on 5th October 1998

2. Bernard’s inheritance

In the Estate of Naftali (Deceased) [2002] 2 KLR 684 it was held that a grant of representation could be revoked or annulled at any time by the court on its own motion or an application by an interested party by virtue of Section 76 of the Law of Succession Ad Thiese, reasons include:

a. The proceedings to obtain a grant being defective in substance;

b. The grant having been obtained by reliance on false statements, non-disclosure or concealment of important matter of information.

The applicant herein alleges that her consent as a beneficiary. In the matter of the estate of Muriranja Mbao Njiri Nairobi High Court Succession Cause number 890 (Kamau Ag J), it was held that Applicants have equal rights in giving consent to filing a petition. The petitioner in his testimony admitted to the fact that he did not get consent from his sisters but only from his brothers and mothers. As such, this court is moved by the application. Further, the petitioner failed to disclose he had sisters – daughters of the deceased who had equal rights to petition and inherit from the deceased. These grounds are sufficient to revoke the said grant.

On the second issue, the evidence of all applicants and administrator witnessed to the fact that LR/Nkuene/L-Mikumbune/74 was physically subdivided in 10 portion. 9 of the portions were given to the deceased’s son in exclusion of Bernard who as aforementioned was given another piece of land. The 9 sons have since developed the land and the 10th portion was occupied by the deceased until his death. Bernard was permitted by his brother to build a store at LR-74 but later refused to vacate at the order of the chief. Julius Ndege confirms that he was present when the deceased was given L.R. Abogeta/L.Chure/541 as inheritance. It is only fair then to say that Bernard should not claim anything in LR/Nkuene/L.Mikumbune/74.

Now, what is to be ascertained is the extent of the rights of the Petitioner in L.R/Nkuene/L.Mikumbune/483 as it is alleged that he educated 3 of the deceased’s children and Miueni/Mikabune/498 whose title is claimed by Cyprian and Douglas who gave the deceased Ksh 500. Further what are these portions that they claim?

Anyway, the grant confirmed on 5th October 2008 is hereby revoked. In the interest at all parties and in the expedition of Justice, Bernard is ordered to vacate LR/Nkuene/L.Mikumbune /74 within 30 days. The grant to be applied a fresh in 30 days by a male and a female beneficiary from different houses. A mention date be issued to confirm compliance. It is so ordered.

HON. A.ONG’INJO

JUDGE

RULING DELIVERED, DATED AND SIGNED IN COURT ON

9TH AUGUST 2018.

In the presence of:

C/A: Penina

Petitioner: Mr Mutegi Advocate for Petitioner

Objector:- N/A

Applicant:MS Atieno Advocate for Applicant.

Order

M. 5. 11. 2018 for further directions

HON. A.ONG’INJO

JUDGE