[2019] KEHC 10381 (KLR)
The court found that the administrator, Joseph Muthama Musau, failed to disclose all beneficiaries of the deceased's estate, as evidenced by the applicant's unchallenged affidavit and supporting documents, including a letter from the area chief. The respondent's failure to file a replying affidavit or submissions...
Source-derived case information.
- Citation
- [2019] KEHC 10381 (KLR)
- Parties
- Applicant: Kalondu Musau; Respondent: Joseph Muthama Musau
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 122 of 2014
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- application allowed; grant revoked; fresh grant to be issued jointly; restriction order granted; no order as to costs
- Judges
- BC Koech
- Legal Topics
- Revocation of Grant, Concealment of Beneficiaries, Succession Act Section 76, Confirmation of Grant, Restriction Orders, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kalondu Musau
Applicant
Joseph Muthama Musau
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant issued to Joseph Muthama Musau should be revoked for concealment of beneficiaries.
- 2 Whether a restriction order should be placed on the estate properties pending determination of the cause.
Ratio Decidendi
The court found that the administrator, Joseph Muthama Musau, failed to disclose all beneficiaries of the deceased's estate, as evidenced by the applicant's unchallenged affidavit and supporting documents, including a letter from the area chief. The respondent's failure to file a replying affidavit or submissions meant the applicant's allegations stood uncontroverted. The court held that such concealment of material facts and exclusion of rightful beneficiaries warranted revocation of the grant under Section 76 of the Law of Succession Act. The court further found that a restriction order was necessary to prevent dealings with the estate properties until all beneficiaries were properly...
Court Disposition
application allowed; grant revoked; fresh grant to be issued jointly; restriction order granted; no order as to costs
Orders
- The grant issued to Joseph Muthama Musau on 20/02/2015 and confirmed on 15/03/2018 is revoked.
- A fresh grant to be issued in the names of Joseph Muthama Musau and Kalondu Musau.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 122 OF 2014
IN THE MATTER OF THE ESTATE OF MUSAU NTHEI (DECEASED)
KALONDU MUSAU...............................APPLICANT
VERSUS
JOSEPH MUTHAMA MUSAU........RESPONDENT
RULING
1. By a summons dated 14th May, 2018, the applicant seeks the revocation and or annulment of grant issued by this court on 22nd March, 2018 to Joseph Muthama Musau. He further seeks that a restriction order be issued to the Registrar of Lands from registering or transferring Donyo Sabuk/Komarock Block 1/246 and Mbiuni/Ulaani/372 pending the hearing and determination of this application.
2. The applicant who alleges that he is the deceased 2nd wife contended that there was concealment of all the deceased’s beneficiaries and children and their interest in his estate. She particularly stated that the administrator misrepresented that he was the only son to the deceased yet the deceased had ten children. That the administrator failed to include her and the other children in the petition. That he failed to inform the beneficiaries of the deceased who are his uncles and to whom the deceased was holding properties for in trust. She stated that the administrator is now in the process of transferring and selling the properties to the detriment of the beneficiaries.
3. This court notes that despite being granted leave to file a replying affidavit to the summons and to file submissions, the respondent failed to do so. The applicant on its part filed submissions which was essentially a reiteration of the averments in the summons. In support thereof, section 76 of the Succession Act and the case of Re Estate of STM (2017) eKLR were relied on.
4. I have given due consideration to the application and the submission by the Applicant. It is clear from annexure KM-2 which is a letter from the subject area chief that the deceased had beneficiaries other than those revealed by the administrator while applying for confirmation of grant. Having failed to contend the said fact, I find that the facts as alleged by the applicant are true having not been rebutted. See Kipyator Nicholas Kirpono Biwott v. George Mbugus and Kalamka Ltd Civil Case No. 2143 of 1999 where it was held:
“…Having filed no replying affidavit to rebut the averments in the plaintiff’s affidavit in support of the application. I, therefore have no alternative but to strike out paragraphs…of the defence and enter judgment for the plaintiffs on liability.”
5. It transpired that the Respondent had already been cited vide Kangundo Cause No. 11 of 2017 by the Objector’s herein and it is therefore quite baffling that the Petitioner/Respondent herein having been cited filed the present cause and failed to include the objector and her children as beneficiaries. The conduct of the Petitioner in concealing this crucial fact merits an order of revocation of the confirmed grant so that the parties herein could get back to the drawing board and proceed on a clean slate where all those entitled to benefit from the estate of the deceased are involved.
6. In the result, I find merit in this summons and it is allowed in the following terms:
(a) The grant issued to Joseph Muthama Musau by this court on 20/02/2015 and confirmed on 15/03/2018 is hereby revoked.
(b) A fresh grant be issued in the name of JOSEPH MUTHAMA MUSAUandKALONDU MUSAU.
(c) A fresh summons for confirmation of grant be filed within thirty (30) days upon issuance of the fresh grant.
(d) A restriction order do issue to the Registrar of Lands from registering or transferring or in any manner dealing with Land Reference Numbers DONYO SABUK/KOMAROCK BLOCK 1/246andMBIUNI/ULAANI/372 until the final determination of this cause.
(e) There shall be no order as to costs.
It is so ordered.
Dated and delivered at Machakos this 6th day of February, 2019.
D.K. KEMEI
JUDGE