[2010] KEHC 1010 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

SUCCESSION CAUSE NO. 19 OF 2000

IN THE MATTER OF THE ESTATE OF:

T N A ………………..………………………. DECEASED

AND

IN THE MATTER OF ANNULMENT OF REVOCATION OF GRANT BY M N J

M N J ……..…………………………………. APPLICANT

VERSUS

A M M …………............…… RESPONDENT/PETITIONER

RULING

On 26th May 2008 the applicant filed summons for revocation of a grant under the provisions of section 76 (b) of the law of Succession Act and rule 44 (1) of theProbate andAdministration Rules. She prayed that the Letters of Administration in respect of the estate of T N, hereinafter referred to as “the deceased”, be revoked and/or annulled. The grant had been issued to the respondent on 6th February 2000. The applicant also prayed that upon revocation of the said grant, a confirmed grant be issued to her.

The application was made on the grounds that the grant was obtained fraudulently by concealment of material facts namely that there were no other dependants of the deceased which was not true. The grant was also obtained by making of untrue allegation that the deceased was survived by a widow known asA M M (the respondent) and children known as J M, G N, D Niand J K.

In her affidavit in support of the application, the applicant deposed that the deceased died on28th December, 1994. She was her real grandmother, her mother having been married to the deceased in a woman to woman marriage. The deceased was also married to the respondent. The two wives of the deceased had several children. The applicant’s mother died on 7th February 2008. The applicant further deposed that she had been informed by the area elders known as W O, A O, A Oand M O that by the time her mother got married to the deceased she had sired two children namelyJ Aand M A. J A had however passed away and since the deceased remained with only a daughter, M A, she opted to marry the applicant’s mother so that she could sire for her male children.

At the time when the deceased married the applicant’s mother, the respondent had deserted the deceased. But when the respondent heard that the deceased had married the applicant’s mother, she surfaced with three children namelyJ M, D Nand G N.

The applicant went on to state that the deceased left behind a property known as [particulars withheld] where she has lived since 1972 when her mother was married. The applicant and her brother, W O,are the only surviving children of their late mother. The applicant has three children aged 19, 17 and 11 years. She is also taking care of her late brother and late sister’s children who are aged 6, 4, 2, 15 and 22 years.

The applicant further stated that when the respondent applied for grant of letters of administration, she concealed the fact that the deceased had other dependants, that is, her mother and her children. The respondent stated that the only dependants of the deceased were herself and her children. After she obtained the grant of letters of administration she secretly transferred land parcel [particulars withheld] to herself. As a result the applicant and her children have been reduced to squatters on an estate which is otherwise supposed to be theirs.

The respondent did not file a replying affidavit but filed grounds of opposition. She stated,inter alia, that the application was mischievous, frivolous and vexatious, that the applicant is guilty of laches and that the applicant is a trespasser since she was living elsewhere and not on the deceased’s land.

When this matter came up for directions on24th May 2010, the petitioner’s advocate was absent but Mr. Bosire for the objector/applicant was in attendance. The court directed that the objection proceedings shall be disposed of by way of affidavits. Parties were ordered to put in their written submissions within 30 days from 25th May 2010. The matter was set to be mentioned on 25th June 2010 to fix a date for ruling. The court further ordered that the above orders be extracted and served upon the petitioner’s counsel for his compliance.

When I perused this file for purposes of preparing this ruling, I did not come across the petitioner’s submissions. The only submissions on record are those of the applicant. The advocates for the parties had earlier argued an application for an injunction before Muchelule, J. and a ruling thereon was delivered on1st February 2010. Both parties had filed submissions in respect of that application.

In the absence of any replying affidavit and submissions on the part of the respondent, the applicant’s application dated26th May 2008 stands unopposed. I have therefore no reason to doubt the contents of the applicant’s affidavit in support of her application. If indeed the applicant’s mother was a co-wife of the respondent and she is living on the aforesaid parcel of land together with her children the respondent ought to have disclosed that to the court at the time of filing the application for the grant and confirmation of the same. The applicant and her children as well as the children of her late brother and sister are entitled to a share of [particulars withheld].

Consequently, I grant the orders as sought by the applicant. The respondent can only blame herself for failing to file a replying affidavit to the applicant’s application and for her failure to file submissions as directed by this court. The respondent shall bear the costs of this application.

DATED, SIGNED AND DELIVERED AT KISII THIS 26TH DAY OF JULY, 2010.

D. MUSINGA

JUDGE.

26/7/2010

Before D. Musinga, J.

Mobisa – cc

Mr. Minda for Mr. Gichana for the Objector

Mr. Moracha for Mr. Bosire the Petitioner

Court: Ruling delivered in open court on 26th July, 2010.

D. MUSINGA

JUDGE.