[2018] KEHC 3977 (KLR)
The court found that there was sufficient evidence to show that the respondent, Leah Mukwanjiru Mwiandi, was not the only person entitled to the estate and that the applicant, David Kariuki Muchunku, had raised legitimate issues regarding concealment of material facts. The court noted that the failure of the...
Source-derived case information.
- Citation
- [2018] KEHC 3977 (KLR)
- Parties
- Applicant: Janet Gaaji Muchunku; Respondent: Leah Mukwanjiru Mwiandi; Applicant: David Kariuki Muchunku
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 672 of 2015
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- grant revoked and confirmation reversed; applicant given time to apply for substitution
- Judges
- BB Limo
- Legal Topics
- Revocation of Grant, Letters of Administration, Concealment of Material Facts, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janet Gaaji Muchunku
Applicant
Leah Mukwanjiru Mwiandi
Respondent
David Kariuki Muchunku
Applicant
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the respondent concealed material facts in obtaining the grant of letters of administration.
- 2 Whether the grant was issued to the respondent due to an inadvertent mistake.
- 3 Whether the applicant is entitled to revocation of the grant and substitution as administrator.
Ratio Decidendi
The court found that there was sufficient evidence to show that the respondent, Leah Mukwanjiru Mwiandi, was not the only person entitled to the estate and that the applicant, David Kariuki Muchunku, had raised legitimate issues regarding concealment of material facts. The court noted that the failure of the applicant to move the court for substitution in a timely manner led to the grant being issued to the respondent, but this did not preclude the court from revoking the grant upon discovery of the concealment. The court exercised its discretion under Section 76 of the Law of Succession Act to revoke the grant and reversed the confirmation of the same. The court further granted the...
Court Disposition
grant revoked and confirmation reversed; applicant given time to apply for substitution
Orders
- The grant issued to Leah Mukwanjiru Mwiandi is revoked under Section 76 of the Law of Succession Act.
- The confirmation of grant dated 12th October, 2017 is reversed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT CHUKA
SUCCESSION CAUSE NO. 672 OF 2015
(FORMERLY SPM SUCCESSION CAUSE NO. 79 OF 2015)
IN THE MATTER OF THE ESTATE OF THE LATE MUGAMBI MUKETHA -(DECEASED)
JANET GAAJI MUCHUNKU.....................PETITIONER
VERSUS
LEAH MUKWANJIRU MWIANDI..........RESPONDENT
R U L I N G
1. This cause relates to the estate of the late Mugambi Muketha (deceased) who passed on sometime in 1960s domiciled in Karongoni Sub-Location, Karingani. The estate in this cause comprises that property known as Mwimbi/Kiraro/261 measuring (0. 25 ha). The deceased died living behind two children Janet Gaaji Muchunku (deceased) and Mbae (deceased). Janet Gaaji Muchunku petitioned for Letters of Administration initially but Leah Mukwanjiru Mwiandi cross petitioned for the same objecting to Janet Gaaji's application on the ground that Mugambi Muketha left no children and since she was married to Mwiandi Wa Rwiro (deceased) brother to Mugambi Muketha she should be granted letters of administration in respect to his estate.
2. This court entertained the objection by Leah Mukwanjiru Mwiandi but before the ruling the Petitioner (Janet Gaaji) passed on and the court ruled that any representative from Janet Gaaji should apply for substitution and declined to appoint Leah Mukwanjiru Mwiandi as the administratrix. However no person turned up on behalf of the late Janet Gaaji with the view to substituting her and this court was left with no other option but to let Leah Mukwanjiru Mwiandi to be the administratrix on 4th May, 2016.
3. Upon confirmation of grant on 12th October, 2017 David Kariuki Muchunku, came up with Summons for Revocation of Grant dated 17th October, 2017 stating that he was a son to Janet Gaaji (deceased) who was a daughter of the deceased herein. He has accused the Respondent (Leah Mukwanjiru Mwiandi) for concealing from this court material facts. This is the application that is the subject of this ruling.
4. The Respondent has opposed this application through a Replying Affidavit sworn on 14th November, 2017. In the said affidavit the Respondent has dismissed the applicant as an imposter and fraudster who has no relations with the deceased. According to her the applicant is not a dependant and has deposed that she is the only person close to the deceased herein by virtue of having been married to his brother.
5. In his evidence in court the applicant told this court that her late mother Janet Gaaji was married to Patrick Muchunku who was his father. The witnesses called to testify Kanampiu Runkungi (PW2), Bundi Karigicha (PW3) and William Kagondu (PW4) all testified and what this court deduced from their evidence is that the late Mugambi Muketha (deceased was married to one Ciakangori and were blessed with two children Janet Gaaji (now deceased) and Mbae M'Mugambi (deceased reported to have died at young age).
6. I have considered this application and the evidence tendered and the only issue for the determination is whether or not there was material concealment of facts by the respondent and/or whether the grant was issued to her due to an inadvertent mistake.
7. There is no dispute that prior to her demise Janet Gaaji had put up a spirited fight to inherit the estate of the deceased claiming that she was the only surviving child to the deceased. Though the Respondent herein strenuously objected to her claim and applied to be considered as the sole heir, this court through a ruling dated 6th October, 2016 declined and gave the personal representative of the late Janet Gaaji Muchunku to apply for substitution. Failure by the applicant herein to move this court on time led to the Respondent being granted a grant of Letters of Administration on 8th May, 2017. Although, the applicant has not given the explanation for the delay in moving this court, I find that the issues raised in the application and the oral evidence tendered can only be addressed adequately if the grant issued in this cause is revoked. The same is revoked under Section 76 of Law of Succession Act and the confirmation of the same on 12th October, 2017 is hereby reversed. I shall exercise my discretion under Section 66 of Law of Succession Act and appoint Mukwanjiru Mwiandi the administratrix of the estate of the deceased herein.
I shall grant the applicant herein limited period within which to move this court for substitution upon compliance with the law.
I make no order as to costs at this stage. The applicant is granted 21 days to move this court and default the Respondent or any other party is at liberty to apply.
Dated, signed and delivered at Chuka this 3rd day of October, 2018.
R. K. LIMO
JUDGE
3/10/2018
Ruling signed, dated and delivered in the open court in presence of Petitioner/Respondent in person and Applicant in person.
R.K. LIMO
JUDGE
3/10/2018