[2023] KEHC 25718 (KLR)

In re Estate of Mute Karuirii alias Mute S/O Karuirii (Deceased) (Succession Cause 642 of 2012) [2023] KEHC 25718 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25718 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 642 of 2012

FN Muchemi, J

November 16, 2023

IN THE MATTER OF THE ESTATE OF MUTE KARUIRII alias MUTE s/o KARUIRII (DECEASED)

Between

Grace Njeri Maina

Applicant

and

Peter Maina Mute

1st Respondent

Elizabeth Thiira Muthee

2nd Respondent

Ruling

Brief facts 1. These summons for determination dated 10th November 2022 brought under Section 76 of the Law of Succession Act and Rule 73 of the Probate & Administration Rules seeks for orders for revocation of grant issued on 4th September 2012 and confirmed on 16th January 2014.

2. The application is opposed by the 2nd respondent who filed a replying affidavit sworn on 8th May 2023.

The Applicant’s case 3. The applicant contends that she is a grand daughter of the deceased and a daughter to the respondent who is the administrator of the estate. She further contends that the grant herein was issued on 4th September 2012 to the respondent and confirmed on 16th January 2014. The applicant argues that the respondent failed to disclose to the court that the estate was ancestral land and further sold some portion of the said land to strangers without the family’s consent. Therefore, the applicant seeks for orders that the grant be revoked as the respondent included strangers in the estate thereby disinheriting the rightful beneficiaries of the estate.

The 2nd Respondent’s Case 4. The respondent states that the estate of the deceased is not ancestral land and neither was the grant obtained through fraudulent means as alleged by the applicant. The respondent further states that she is entitled to 1/8 acre of LR. No. Muhito/Njiruini/297.

5. The respondent argues that the applicant is not a beneficiary of the estate as she is a granddaughter of the deceased and can only inherit through her father.

6. Parties put in written submissions.

The Applicant’s Submissions. 7. The applicant relies on the case of Re Estate of John Gakunga Njoroge [2015] eKLR and submits that the 1st respondent did not have the authority to sell the estate of the deceased before the grant was confirmed. To make Make matters worse, the respondent included the purchasers as beneficiaries of the estate. The applicant argues that the 1st respondent by including the purchasers as beneficiaries of the estate, constituted making false statements thus misleading the court at the point of confirming the grant. Moreover, the applicant further argues that the 2nd respondent has not demonstrated how she is related to the deceased to make her a beneficiary and thus entitled to inherit his estate.

8. The applicant thus urges the court to revoke the grant and ensure that the grandchildren of the deceased get to benefit their grandfather’s estate which is ancestral land.

The 2nd Respondent’s Submissions 9. The 2nd respondent relies on the case of Re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR and submits that the applicant being a granddaughter of the deceased, can only inherit through her father after his death. Therefore as her father, the 1st respondent is still alive, the applicant cannot directly inherit from the deceased’s estate.

Whether The Applicant Has Presented Sufficient Evidence To Warrant Revocation Or Annulment Of The Grant. 10. Section 76 of the Law of Succession Act gives the court the powers to revoke a grant provided the conditions stipulated therein have been met. It states that:-A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion:-a.That the proceedings to obtain the grant were defective in substance;b.That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;c.That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;d.That the person to whom the grant was made has failed, after due notice and without reasonable cause either:-i.To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; orii.To proceed diligently with the administration of the estate; oriii.To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; oriv.The grant has become useless and inoperative through subsequent circumstances.

11. The 1st respondent petitioned for letters of administration intestate on 28th June 2012 and listed himself as the only beneficiary being a son to the deceased. The grant was issued on 4/9/2012. In his application for confirmation of grant dated 4th June 2013, the 1st respondent listed the 2nd respondent and 3 others as beneficiaries of LR. No. Muhiti/Njiruini/297. During the confirmation of the grant, the 1st respondent told the court that he had sold the said land parcel to the 2nd respondent and that there were no other beneficiaries. There being no objection, the court proceeded to confirm the grant with the respondent as the sole beneficiary.

12. The applicant contends that the said parcel of land is ancestral land and the 1st respondent sold the deceased’s land Muhito/Njiruini/297 without the consent of the family members. Although the applicant has contended that the said land is ancestral land, she has not adduced any evidence in to support. It is evident that the 1st respondent is the only direct beneficiary of the estate. The applicant being a grand daughter of the deceased, can only inherit the deceased’s estate through her father. However, no evidence has been adduced that the deceased had another child who could be the father or mother of the applicant. This principle was stated in the case of Re Estate of Florence Mukami Kinyua (Deceased) (2018) eKLR Matheka J stated:-A grandchild is a direct heir to the estate of the grandparent where the parent predeceased the grandparent. The grandchildren get into the shoes of their deceased parents and take the parents’ share in the estate of the grandparents. This was stated In Re Estate of Wahome Njoki Wakagoto(2013) eKLR where it was held:-Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.

13. The legal position under the Law of Succession Act is that the applicant can only inherit the deceased estate from her parent if such parent was a child of the deceased. During the confirmation of grant proceedings, the 1st respondent told the court that he had sold the suit land to the purchasers and no objection was raised. Father of the applicant, did he participate? The chief’s letter named only the respondent as the sole beneficiary in the estate of the deceased. The respondent as the sole beneficiary chose to sell part of the estate to 3rd parties. During the proceedings, there was objection by any person. The applicant herein was not a beneficiary to the deceased’s estate and therefore lacks the capacity to challenge the action of the 1st respondent. As such, I am of the considered view that the applicant has failed to satisfy the court on any of the grounds for revocation of grant under Section 76 of the Act.

Conclusion 14. Consequently, I find no merit in this summons for revocation and I hereby dismiss it with no order as to costs.

15. Each party shall meet their own costs.

16. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 16TH DAY OF NOVEMBER, 2023. F. MUCHEMIJUDGE