[2017] KEHC 2682 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

H.C SUCCESSION CAUSE NO. 312 OF 2015.

IN THE MATTER OF THE ESTATE OF THE LATE JAMES MURITHI – DECEASED

LEONARD KATHURIMA MAITIMA .......................PETITIONER

RULING

The deceased James Murithi died on 15th December 1994 according to a certificate of Death filed together with petition for Letters of Administration to his Intestate Estate. When the deceased died he was according to letter dated 20th September 2012 written by Chief Kirima Itiene Location, survived by 7 children and the entire estate is made up of L.R. Nyaki/Giaki/19.

Leonard Kathurima Maitima petitioned for Letter of Administration with the consent of other beneficiaries as shown in form 26 Grant was made to the said Leonard Kathurima Maitima on 26th April 2016.

Mary Kathure Murithi and Martha Karugu Angerani filed summons for revocation or annulment of the grant made to Leonard Kathurima on the ground there were obtained fraudulently by the said Leonard Kathurima pretending he was son to the deceased while he was nephew to the deceased. They claim he obtained their signatures without the whole petition. They said there was a will by the deceased and the grant was issued in total disregard of the law and is therefore invalid. In the supporting affidavit the applicants averred that the deceased had indicated mode of distribution in his will and the chiefs letter indicated that Mary Kathure Mureithi should be administrator but the Administrator ignored. It was also averred that Leonard Kathurima did not include other assets in the petition.

In reply Leonard Kathurima Maitima swore an affidavit and said he was never served with a copy of the will claimed by applicants. He said he is biological son to the late Phillip Maitima Mureithi father to the deceased James Murithi.

That he was mandated by the entire family or beneficiaries of the late James Murithi including the 2 applicants who appended their signatures.

He said when the applicants among other members of the deceased family appeared before the chief in July 2012 they didn’t raise any disagreement.

He said that in August 2012 they hired a surveyor and they shared the estate property in the presence of area chief Mugambi Karuti.

A chief Joseph Mururu

Rebecca Wanja Mati

Isaac Kiambi Mukiri

Simon Guantai

He said application is an afterthought done in bond faith the applicants having been misled by one Valentino Kiremi.

He said the alleged will is a false document which has been doctored and it is calculated to deny him and his brother Mathew Kigunda and Peter Maitima their rightful share of the estate. He prayed that the application be dismissed.

The applicants filed a supplementary affidavit and averred that Leonard Kathurima Maitima Mathew Kigunda and Peter Muriuki were not deceased sons but nephews.

That due to the applicants illiteracy Leonard took advantage and made them sign a consent which they did not understand therefore;

That the Chief stated in his Letter that Mary Kathure Murithi should be administrator but Leonard made himself the administrator;

That the Petitioner collaborated with Chief who named them as sons to the deceased. She gave a list of deceased persons children including her co-applicant who is widow to her brother Gerald Munyua she said that the petitioner was son to Phillip Maitima and during the lifetime of the deceased had been given their shares and that the deceased had willed that only the objectors should inherit.

L.R Nyaki/Giaki/11/19 she averred that Valentino Karimi is a son to the deceased and came to court with clear heart to solve the problem created by the petitioner. They said that the deceased persons will was read before the family and clan members after the death of the deceased. They averred that the Petitioner whom they had trusted tricked them into signing consent for him to file petition and they didn’t know he had an intention to steal from them.

In further Replying Affidavit Leonard Kathurima says that he together with Mathew Kigunda and Peter Muriuki are grandsons to the deceased James Murithi and not his nephews;

That Nathan Kinoti Munyua and Frankline Nkumbania Gerald are sons to Martha Karuga and grandsons to the deceased.

He averred that valentino was not in good terms with his late father Phillip Maitima and grandfather James Murithi upto their demise. He annexed copy of C.C.No. 32 of 1982 which was dispute over land no. Kiirua/Naari/67 and Nyaki II/20 which Valentino was holding in trust but sold after the deceased died. He had no objection to being Co-administrator to with another person to the estate of his grandfather.

In consideration of the application for revocation and Supporting affidavits and Replying affidavits. It is apparent that it is not clarified who the daughters and sons of deceased herein are so as to rightly, justly and fairly distribute the estate to the rightful beneficiaries. For that reason the grant made to Leonard Kathurima Maitima is revoked.

The Chief Kirimaitune Location hereby ordered to identify the children (daughters and sons) of the deceased and list their names and identity card numbers.

He should also indicate whether they are alive or dead and for the ones who are deceased he should indicate whether they are survived by a spouse and children. Costs of application to be borne by each party on their own.

HON. A.ONG’INJO

JUDGE

12/10/2017

Before Adwera – Ong’injo Judge

Penina – C/A

Applicants – PIP – Mary Kathure and Martha Karuga

Respondent – Leonard Kathurima – PIP

Court

Ruling Delivered, Dated and Signed in court

Mention 13. 12. 2017 for chiefs letter.

HON. A.ONG’INJO

JUDGE