[2020] KEHC 9547 (KLR)
The court found that the certificate of confirmation of grant issued on 9th November 2016 was a nullity because it was granted to a petitioner who had already died and whose death had not been disclosed to the court. As such, any proceedings or orders based on that certificate were invalid. The court exercised its...
Source-derived case information.
- Citation
- [2020] KEHC 9547 (KLR)
- Parties
- Applicant: Stephen Mucheru Mungai; Respondent: Naomi Wanja Muchiri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2706 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application to Compel Co Administrator to Execute Documents or for Deputy Registrar to Execute
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Succession, Grant Confirmation, Administrator Substitution, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mucheru Mungai
Applicant
Naomi Wanja Muchiri
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Compel Co Administrator to Execute Documents or for Deputy Registrar to Execute
Legal Issues
- 1 Whether the certificate of confirmation of grant issued on 9th November 2016 was valid given the death of the petitioner prior to its issuance.
- 2 Whether the respondent should be compelled to execute documents for the estate or the Deputy Registrar should do so.
- 3 What is the proper procedure for confirmation of grant when co-administrators are in place.
Ratio Decidendi
The court found that the certificate of confirmation of grant issued on 9th November 2016 was a nullity because it was granted to a petitioner who had already died and whose death had not been disclosed to the court. As such, any proceedings or orders based on that certificate were invalid. The court exercised its inherent jurisdiction to nullify those proceedings and the certificate. The proper course is for the current co-administrators to file a fresh application for confirmation of grant, serve all beneficiaries, and allow them to respond and propose distribution. The application by the applicant to compel the respondent or the Deputy Registrar to execute documents based on the...
Court Disposition
application dismissed with costs
Orders
- The proceedings of 9th November 2016 and the certificate of confirmation issued on that day are nullified.
- The applicant and respondent, as co-administrators, are directed to file and serve on all beneficiaries an application for confirmation of grant within 30 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 2706 OF 2009
IN THE MATTER OF THE ESTATE OF MUNGAI MUCHERU – (DECEASED)
STEPHEN MUCHERU MUNGAI...........ADMINISTRATOR/APPLICANT
VERSUS
NAOMI WANJA MUCHIRI...................ADMINISTRATOR/RESPONDENT
RULING
1. The deceased Mungai Mucheru died intestate on 15th May 1992 at Ndenderu in Ruaka. He left one parcel of land, Kiambaa/Ruaka/488 measuring about 1. 01 Ha. On 31st December 2009 his widow Beatrice Wanjiku Mungai petitioned for the grant of letters of administration intestate. On 10th May 2020 she obtained the grant. When she applied for the grant to be confirmed, her son Stephen Mucheru Mungai (the applicant) protested. He claimed not to have been involved in the entire proceedings, and that the proposed distribution had excluded him.
2. On 31st May 2016, following the death of the petitioner on 29th November 2015, the court appointed the applicant and his sister Naomi Wanja Muchiri (the respondent) as an administrator in substitution.
3. It does appear that on 9th November 2016 the application for confirmation that had been filed by the petitioner was granted, and she was, in the distribution, ordered to hold the deceased’s parcel of land in trust of her children, except the applicant.
4. On 30th May 017 the applicant applied to have the certificate of confirmation revoked because it was a nullity, having been issued to the petitioner who was deceased. He stated that the fact of death had not been brought to the attention of the court.
5. On 1st October 2018 the court was informed that the application for revocation had been withdraw. The applicant was on that day appointed a co-administrator.
6. The present application dated 10th April 2019 by the applicant seeks that his co-administrator (the respondent) be directed to sign and execute all the necessary documents over Kiambaa/Ruaka/488 –
“as per the certificate of confirmation of grant issued on 9th November 2016 and amended on 18th October 2018. ”
In the alternative, the Deputy Registrar be made to execute the documents. The said certificate of confirmation indicates that the two administrators to hold the parcel of land for the named beneficiaries.
7. The application was opposed by the respondent. According to her the basis upon which the applicant extracted the said certificate of confirmation was not clear, as there had been no application made or granted to rectify or amend the certificate of confirmation issued in respect of the petition.
8. When the grant was confirmed on 9th November 2016 to the petitioner, she had died on 29th November 2015. No application had by that time been made to substitute her. The court was not made aware that the petitioner had died.
9. On the court’s own motion, under section 47 of the Law of Succession Act (Cap. 160)and rule 73of the Probate and Administration Rules, I nullify the proceedings of 9th November 2016 and the certificate of confirmation issued on that day.
10. Now that the applicant and the respondent are co-administrators of the estate of the deceased, I direct them, or any of them, to file and serve on all the beneficiaries of the estate of the deceased an application for the confirmation of the grant. This should be done within 30 days from today. In the application they would propose how the estate of the deceased should be shared. Upon service each beneficiary shall have 21 days to file a response and make own proposal. The matter shall be mentioned on 30th June 2020 for directions.
11. Consequently, the application dated 10th April 2019 was misconceived and is dismissed with costs.
DATED and DELIVERED electronically, following consent of the parties, at NAIROBI this 30TH day of APRIL 2020.
A.O. MUCHELULE
JUDGE