[2021] KEHC 13458 (KLR)
The court found that since the applicants were not served with the application for revocation of grant, the orders revoking the grant and setting aside the certificate of confirmation were set aside. The application for revocation is thus reinstated, and the applicants are now given an opportunity to respond to it....
Source-derived case information.
- Citation
- [2021] KEHC 13458 (KLR)
- Parties
- Applicant: Rose Wanjiku Muite; Applicant: Samuel Karanja Mwathi; Applicant: Justus Kuria Mwathi; Applicant: Frederick Chege Mwathi; Applicant: Catherine Wairimu Mwathi; Respondent: Timothy Joe Mwathi Njeri; Respondent: Collins Ndegwa Njeri; Respondent: Eva Ann Wangui Njeri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2668 of 2011
- Procedural Posture
- Succession Cause / Interlocutory Application; Directions on Response to Revocation Application
- Outcome
- Application adjourned; applicants granted leave to respond to revocation application.
- Judges
- AO Muchelule
- Legal Topics
- Succession, Grant Revocation, Service of Process, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Wanjiku Muite
Applicant
Samuel Karanja Mwathi
Applicant
Justus Kuria Mwathi
Applicant
Frederick Chege Mwathi
Applicant
Catherine Wairimu Mwathi
Applicant
Timothy Joe Mwathi Njeri
Respondent
Collins Ndegwa Njeri
Respondent
Eva Ann Wangui Njeri
Respondent
Procedural Posture
Succession Cause / Interlocutory Application; Directions on Response to Revocation Application
Legal Issues
- 1 Whether the respondents were entitled to participate in the petition and distribution of the deceased's estate.
- 2 Whether the applicants were properly served with the application for revocation of grant.
- 3 Whether the orders revoking the grant should be set aside for lack of service.
Ratio Decidendi
The court found that since the applicants were not served with the application for revocation of grant, the orders revoking the grant and setting aside the certificate of confirmation were set aside. The application for revocation is thus reinstated, and the applicants are now given an opportunity to respond to it. The court emphasized the necessity of service and participation of all interested parties in succession proceedings to ensure substantive justice. The applicants and their siblings are granted 21 days to respond to the application for revocation, after which the matter will proceed for directions. No orders as to costs were made.
Court Disposition
Application adjourned; applicants granted leave to respond to revocation application.
Orders
- Applicants and their siblings to respond to the application for revocation within 21 days.
- Matter to be mentioned on 7th December 2021 for directions on hearing.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 2668 OF 2011
IN THE MATTER OF THE ESTATE OF RACHAEL WAMBUI CHEGE - (DECEASED)
ROSE WANJIKU MUITE.................................1ST APPLICANT
SAMUEL KARANJA MWATHI......................2ND APPLICANT
JUSTUS KURIA MWATHI..............................3RD APPLICANT
FREDERICK CHEGE MWATHI....................4TH APPLICANT
CATHERINE WAIRIMU MWATHI...............5TH APPLICANT
-VERSUS-
TIMOTHY JOE MWATHI NJERI...............1ST RESPONDENT
COLLINS NDEGWA NJERI........................2ND RESPONDENT
EVA ANN WANGUI NJERI..........................3RD RESPONDENT
RULING
1. The Deceased Rachael Wambui Chege died intestate on the 28th October 2011. In the affidavit sworn by the applicant Rose Wanjiku Muite on 6th August 2018 in support of the grant of letters of administration intestate, she indicated that she was the daughter of the deceased and that her siblings were Justus G. Kuria, Loise Njeri, Fredrick R. Chege, Ernest Gichuru Mwathi, Samuel P. Karanja and Catherine E. Wairimu. The applicant admits that Loise Njeri died and left three children who are the respondents Timothy Joe Mwathi, Collins Ndegwa Njeri and Eva Ann Wangui Njeri. The petition indicated that the deceased left the following property:-
(a) Muguga/Kanyariri/T.145;
(b) Dagoretti/Kinoo/883;
(c) Muguga/Kanyariri/796;
(d) Plot No.252 Mwihaki Farmers Co. Ltd; and
(e) Money at CBA - Account No. 647xxxxxxx.
She got the grant which was confirmed on 27th August 2013. She inherited the entire estate after consent to the application for confirmation was provided by Justus G. Kuria, Fredrick R. Chege, Ernest Gichuru Mwathi, Samuel P. Karanja and Catherine E. Wairimu.
2. Timothy Joe Mwathi Njeri, Collins Ndegwa Njeri and Eva Ann Wangui Njeri (the respondents) filed summons dated 14th September 2018 to revoke the grant. They complained that they had not been involved in the petition leading to the grant, their consent had not been sought or obtained and that they had consequently been disinherited. They were represented by Muumbi & Co. Advocates. The application was served but received no response. Justice Asenath Ongeri heard the application and allowed it on 2nd August 2019. The grant was revoked and the certificate of confirmation set aside. The property was ordered to revert to the deceased.
3. The applicant and her siblings filed an application dated 23rd June 2020 to set aside the orders of 2nd August 2019 on the basis that the respondents had not served them with the application for revocation. On the basis that the application had been served and had not elicited response, the same was allowed.
4. The present application by the applicant and her siblings seeks that the orders lodged against the suit properties be removed. Once again, the application was served and there was no response. I can see that Mr. Mugu advocate for the applicants says he served by sending an email to the respondents’ advocates. The applicants live in the U.S.A.
5. The legal position is that, now that the orders revoking the grant to the applicant were set aside because the applicant was not served with the application leading to the orders, the application became reinstated and the applicant and her siblings now are at liberty to respond to it so that it can be heard interpartes. This is the application dated 14th September 2018. The court has to determine the question whether or not the respondents were entitled to participate in the petition and the distribution of the estate of the deceased.
6. Under section 47 of the Law of Succession Act (Cap. 160) and rule 73of theProbate and Administration Rules, and in order to do substantive justice to the parties, I give the applicant and her siblings 21 days to respond to the application for revocation, following which the matter shall be mentioned on 7th December 2021 for direction on hearing. Upon service within the response, the respondents shall within 14 days’ file any further affidavit.
7. I adjourn the application dated 29th April 2021.
8. I make no orders as to costs.
DATED AND DELIVERED AT NAIROBI THIS 27TH OCTOBER 2021.
A.O. MUCHELULE
JUDGE