[2018] KEHC 6945 (KLR)
The court found that the applicant, as a son of the deceased, was a rightful beneficiary of the estate but was deliberately excluded by the respondents in their petition for grant of representation. The respondents' omission constituted concealment of material facts and amounted to fraud under section 76 of the Law...
Source-derived case information.
- Citation
- [2018] KEHC 6945 (KLR)
- Parties
- Applicant: Egesa Wabwire Wanzala; Respondent: Angelimo Makokha Abondo; Respondent: Benard Peter Odipo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 20 of 2000
- Procedural Posture
- Probate and Administration / Ruling on Application for Revocation and Annulment of Grant
- Outcome
- application allowed; grant to respondents annulled; fresh grant issued to applicant
- Judges
- KW Kiarie
- Legal Topics
- Succession, Revocation of Grant, Concealment of Material Facts, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Egesa Wabwire Wanzala
Applicant
Angelimo Makokha Abondo
Respondent
Benard Peter Odipo
Respondent
Procedural Posture
Probate and Administration / Ruling on Application for Revocation and Annulment of Grant
Legal Issues
- 1 Whether the grant of representation was obtained fraudulently by making a false statement or by concealment of material facts.
- 2 Whether the applicant, as a son of the deceased, was unlawfully excluded from the list of beneficiaries.
- 3 Whether the grant should be revoked or annulled under section 76 of the Law of Succession Act.
Ratio Decidendi
The court found that the applicant, as a son of the deceased, was a rightful beneficiary of the estate but was deliberately excluded by the respondents in their petition for grant of representation. The respondents' omission constituted concealment of material facts and amounted to fraud under section 76 of the Law of Succession Act. The court held that such concealment justified the revocation and annulment of the grant. The court further noted that the respondents, if they wished to claim any interest in the estate, could do so as objectors in subsequent proceedings. The application for revocation and annulment was therefore merited and allowed.
Court Disposition
application allowed; grant to respondents annulled; fresh grant issued to applicant
Orders
- The grant to the respondents is annulled.
- The applicant is hereby issued with a grant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINSTRATION NO. 20 OF 2000
IN THE ESTATE OF WABWIRE WANZALA.....................DECEASED
BETWEEN
EGESA WABWIRE WANZALA....................APPLICANT/OBJECTOR
AND
ANGELIMO MAKOKHA ABONDO
BENARD PETER ODIPO.................................................RESPONDENTS
RULING
1. EGESA WABWIRE WANZALA, the applicant/ objector herein filed an application dated 5th January 2015 for revocation and annulment of the grant issued herein under Rule 44(1) of the Probate and Administration Rules. It is premised on the following grounds:
a) That the grant was obtained fraudulently by making a false statement or by concealment of material facts.
b) That the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation made in ignorance or inadvertently.
2. The application was opposed by the petitioners/respondents.
3. I have perused the affidavits of both parties. The following facts have emerged:
a) That the late WABWIRE WANZALA, was the registered proprietor of land parcel number BUKHAYO/MALANGA/123
b) That the applicant was the son of the late WABWIRE WANZALA.
c) That the petitioners/respondents had left the applicant out in the list of beneficiaries.
d) That the petitioners/respondents thereafter filed a suit to evict the applicant from his father’s land.
4. Section 76 of the Law of succession provides inter alia 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;
5. Rule 44 (1) of Probate and Administration Rules provides for the form of the application.
6. I therefore find that the application is merited. The grant to the respondents is annulled and the petitioner is hereby issued with a grant. If the respondents want to stake any claim in the estate, they may do so as objectors.
7. The costs of this application to the applicant.
DELIVERED and SIGNED at BUSIA this 8th day of May, 2018
KIARIE WAWERU KIARIE
JUDGE