[2017] KEHC 5994 (KLR)
The court found that the succession proceedings in Githunguri PMCSC No. 1 of 2015 were initiated with the intention of disinheriting over thirty legitimate survivors of the deceased by failing to disclose their existence. This concealment constituted a material non-disclosure and rendered the grant defective. The...
Source-derived case information.
- Citation
- [2017] KEHC 5994 (KLR)
- Parties
- Applicant: Michael Karanja Gathuka; Respondent: Agnes Waithira Gathuka; Respondent: Edith Gathoni Kariuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1304 of 2012
- Procedural Posture
- Succession Cause / Ruling on Applications for Revocation of Grant
- Outcome
- Grant revoked, causes consolidated, and matter transferred to Kiambu High Court.
- Judges
- DN Musyoka, MW Muigai
- Legal Topics
- Succession, Revocation of Grant, Concealment of Survivors, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Karanja Gathuka
Applicant
Agnes Waithira Gathuka
Respondent
Edith Gathoni Kariuki
Respondent
Procedural Posture
Succession Cause / Ruling on Applications for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration issued to Michael Karanja Gathuka should be revoked due to concealment of other beneficiaries.
- 2 Whether the proceedings in Githunguri PMCSC No. 1 of 2015 were defective for failing to disclose all survivors of the deceased.
Ratio Decidendi
The court found that the succession proceedings in Githunguri PMCSC No. 1 of 2015 were initiated with the intention of disinheriting over thirty legitimate survivors of the deceased by failing to disclose their existence. This concealment constituted a material non-disclosure and rendered the grant defective. The court held that such proceedings cannot stand and must be set aside to protect the rights of all beneficiaries. Consequently, the grant issued to Michael Karanja Gathuka was revoked, the two causes consolidated, and the matter transferred to the appropriate jurisdiction for proper determination.
Court Disposition
Grant revoked, causes consolidated, and matter transferred to Kiambu High Court.
Orders
- The grant made in Githunguri PMCSC No. 1 of 2015 on 30th March 2015 to Michael Karanja Gathuka is hereby revoked.
- The cause in Githunguri PMCSC No. 1 of 2015 shall be consolidated with the instant cause which shall be the lead file.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 1304 OF 2012
IN THE MATTER OF THE ESTATE OF SOSPETER GATHUKA PETROL GATHEGE (DECEASED)
RULING
1. The deceased herein died on 24th February 2009. Representation was sought in the estate in a petition filed in Githunguri PMCSC No. 1 of 2015 by Michael Karanja Gathuka, in his alleged capacity as a son of the deceased. He was listed in the petition as the sole survivor of the deceased. There is on record al letter from the Chief of Ikinu Location which describes the petitioner as the only survivor of the deceased. The deceased was said to have died possessed of Muguga/Gitaru/133, Plot No. 550 Scheme 254 – Kitiri and Plot No. P1 802 Scheme Tulaga. A grant of letters of administration intestate was accordingly made to the petitioner. The said grant was confirmed on 15th April 2015, and a certificate to that effect dully issued devolving the entire estate to the administrator.
2. Another cause was initiated in this cause on 29th January 2015 in respect of the same estate. The latter cause was at the instance of Agnes Waithira Gathuka and Edith Gathoni Kariuki in their purported capacities as widows of the deceased. The deceased was expressed to have been survived by five widows and thirty three children. The administrator in Githunguri PMCSC No. 1 of 2015 is listed as one of the children. The deceased was expressed to have died possessed of the assets listed in Githunguri PMCSC No. 1 of 2015, as well as other assets in Naivasha and shares in various firms.
3. There are two applications on record seeking revocation of the grant made in Githunguri PMCSC No. 1 of 2015. One is dated 30th July 2015 and the other is dated 2nd September 2015. In both applications it is pleaded that a large number of the survivors of the deceased had been concealed from the court, and stood to be disinherited. The administrator in Githunguri PMCSC No. 1 of 2015 responded to first application only. He admits that the deceased had several wives and children; he however justifies his conduct on the basis that he had a power of attorney from the deceased giving him charge of his affairs.
4. I need not expend a lot of judicial time considering the merits of the applications before me. It is obvious that Githunguri PMCSC No. 1 of 2015 was filed with a malicious intention of disinheriting some over thirty individuals. Such proceedings cannot possibly be allowed to stand. I have noted that none of the landed assets are situated within the Nairobi, instead they are scattered within Kiambu, Nakuru and Nyandarua Counties. It would appear that the family resides at Kikuyu, Kiambu.
5. The orders that I am moved to make are as follows:-
(a) That the grant made in Githunguri PMCSC No. 1 of 2015 on 30th March 2015 to Michael Karanja Gathuka is hereby revoked;
(b) That the cause in Githunguri PMCSC No. 1 of 2015 shall be consolidated with the instant cause which shall be the lead file;
(c) That the cause herein shall be transferred to the High Court of Kenya at Kiambu for disposal of the pending business.
DATED and SIGNED at NAIROBI this 3RD DAY OF MAY, 2017.
W. MUSYOKA
JUDGE
DELIVERED and SIGNED this 5TH DAY OF MAY, 2017.
M. MUIGAI
JUDGE