[2019] KEHC 1847 (KLR)
The court found that the respondent, in applying for the grant, falsely indicated that he was the only survivor of the deceased, thereby concealing the existence of other heirs. This constituted concealment of a material fact, offending section 76(b) of the Law of Succession Act. The court held that such concealment...
Source-derived case information.
- Citation
- [2019] KEHC 1847 (KLR)
- Parties
- Applicant: Clementina Anyango Were; Respondent: Aloys Were Ajari
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 224 of 2015
- Procedural Posture
- Probate and Administration / Ruling on Application for Revocation of Grant
- Outcome
- application allowed; grant revoked; co-administrators appointed
- Judges
- KW Kiarie
- Legal Topics
- Succession, Revocation of Grant, Concealment of Material Facts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clementina Anyango Were
Applicant
Aloys Were Ajari
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of representation was obtained fraudulently by concealment of material facts.
- 2 Whether the proceedings to obtain the grant were defective in substance.
Ratio Decidendi
The court found that the respondent, in applying for the grant, falsely indicated that he was the only survivor of the deceased, thereby concealing the existence of other heirs. This constituted concealment of a material fact, offending section 76(b) of the Law of Succession Act. The court held that such concealment justified revocation of the grant. The respondent's arguments regarding distribution and prior decisions were deemed matters for consideration at the distribution stage, not at the stage of grant issuance. Consequently, the court revoked the grant and appointed both the applicant and respondent as co-administrators of the estate.
Court Disposition
application allowed; grant revoked; co-administrators appointed
Orders
- The application for revocation of grant is allowed.
- The grant issued is revoked.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO. 224 OF 2015
IN THE ESTATE OF:STEPHEN OUMA OJIAMBO......................DECEASED
BETWEEN
CLEMENTINA ANYANGO WERE..........APPLICANT
AND
ALOYS WERE AJARI.............................RESPONDENT
RULING
1. After this matter was confirmed on 15th February 2017, Clementina Anyango Ojiambo, the applicant herein filed an application for revocation of the grant dated 7th June 2017. It is premised on the following grounds:
a) That the grant was obtained fraudulently by concealment from court material facts.
b) That the proceedings to obtain the grant were defective in substance.
2. The application was opposed on the following grounds:
a) That parcel of land SAMIA/LUANDA-MUDOMA/625 was assigned to the mother of the respondent.
b) That courts have adjudicated over this matter and the verdicts given have not been overturned.
3. I have perused the affidavits of both parties, the attached documents and the record. The following facts have emerged:
a) That the deceased herein was polygamous.
b) That he was survived by several heirs other than the respondent.
The respondent in form P. & A. 5 indicated that he was the only person who survived the deceased. This was concealment of a material fact. This offends section 76 (b) of the Law of Succession Act which provides:
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—
(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;
The issues the respondent was raising about the other beneficiaries having benefited ought to have been addressed at the distribution stage.
4. I have considered that there are decisions herein pertaining to the property of the deceased. These decisions can only be appreciated at the appropriate time.
5. The application is allowed and the grant revoked. The applicant and the respondent herein are appointed co-administrators.
DELIVERED and SIGNED at BUSIA this 3rd day of December, 2019
KIARIE WAWERUKIARIE
JUDGE