[2021] KEHC 5048 (KLR)
The court found that the respondent failed to disclose the applicant, the only surviving daughter of the deceased, as a beneficiary in the succession proceedings. This omission constituted fraudulent obtainment of the grant by concealment of material facts and by making untrue allegations. The court held that such...
Source-derived case information.
- Citation
- [2021] KEHC 5048 (KLR)
- Parties
- Applicant: Mary Adera Ogumbo; Respondent: George Opiyo Lusi
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 891 of 2015
- Procedural Posture
- Probate and Administration / Ruling on Summons for Revocation of Grant
- Outcome
- application allowed
- Judges
- KW Kiarie
- Legal Topics
- Revocation of Grant, Fraudulent Obtainment of Grant, Concealment of Material Facts, Succession, Appointment of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Adera Ogumbo
Applicant
George Opiyo Lusi
Respondent
Procedural Posture
Probate and Administration / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of representation was obtained fraudulently by concealment of material facts.
- 2 Whether the applicant, as the only surviving daughter, was unlawfully excluded from the list of beneficiaries.
- 3 Whether the respondent failed in his duty to administer the estate lawfully.
Ratio Decidendi
The court found that the respondent failed to disclose the applicant, the only surviving daughter of the deceased, as a beneficiary in the succession proceedings. This omission constituted fraudulent obtainment of the grant by concealment of material facts and by making untrue allegations. The court held that such conduct falls squarely within the grounds for revocation of grant under Section 76(b) of the Law of Succession Act. Consequently, the grant previously issued to the respondent was revoked, and the applicant was appointed as the new administrator of the estate, with directions to file a proposed mode of distribution within 30 days.
Court Disposition
application allowed
Orders
- The grant issued to the respondent is revoked.
- The applicant is appointed administrator of the estate.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
PROBATE & ADMINSTRATION NO.891 OF 2015
IN THE MATTER OF THE ESTATE OF:PETRO ONDORO ONUNGA (DECEASED)
BETWEEN
MARY ADERA OGUMBO...............................APPLICANT
AND
GEORGE OPIYO LUSI....................................RESPONDENT
RULING
1. Mary Adera Ogumbo, the applicant herein, moved the court by way of summons for revocation of grant dated 31st December, 2020 premised on grounds that can be summarized as follows:
a) That the petitioner/respondent has failed to administer the estate of the deceased as lawfully required hence the need to appoint another administrator and/or administrators.
b) That the petitioner concealed material facts from the court by failing to disclose that the applicant was the only surviving sibling and/or beneficiary to the deceased.
c) That the grant was obtained hurriedly without filing proper schedule of distribution.
d) That the applicant/respondent is the only surviving daughter of the deceased while the respondent is a grandson from another family.
e) That the grant was obtained fraudulently.
2. The application was opposed by the respondent on ground that the deceased during his lifetime had given to him a portion of the land.
3. Section 76 (b) of the Law of Succession Act provides as follows:
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;
4. The respondent does not deny that the applicant was the daughter of the deceased herein. He however failed to disclose this fact in Form P & A. 5. He listed other purported beneficiaries and left the applicant out. I therefore find that the grant was obtained fraudulently and by means of untrue allegations.
5. The application is allowed with costs. The applicant is hereby appointed administrator and ought to file proposed mode of distribution within 30 days.
DELIVERED AND SIGNED AT HOMA BAY THIS 21ST DAY OF JULY, 2021
KIARIE WAWERU KIARIE
JUDGE