[2014] KEHC 4959 (KLR)
The court found that the non-disclosure of Susan Karugi Gichuki, a daughter of the deceased, and her estate amounted to concealment of material facts and misrepresentation, making the process of obtaining the grant defective under Section 76 of the Law of Succession Act. However, considering the age of the estate...
Source-derived case information.
- Citation
- [2014] KEHC 4959 (KLR)
- Parties
- Applicant: Peter Gitu Gichuki; Respondent: John Mbugua Gitu; Respondent: Joseph Njogu Gitu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1973 of 1994
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- Orders confirming the grant set aside; certificate of confirmation cancelled; administrators to apply afresh for confirmation including all beneficiaries.
- Judges
- DN Musyoka
- Legal Topics
- Revocation of Grant, Non Disclosure of Beneficiaries, Confirmation of Grant, Intestate Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Gitu Gichuki
Applicant
John Mbugua Gitu
Respondent
Joseph Njogu Gitu
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration should be revoked due to non-disclosure of a beneficiary, Susan Karugi Gichuki.
- 2 Whether the process of obtaining the grant was defective due to concealment and misrepresentation.
- 3 What is the appropriate remedy for the non-disclosure: revocation or setting aside confirmation orders.
Ratio Decidendi
The court found that the non-disclosure of Susan Karugi Gichuki, a daughter of the deceased, and her estate amounted to concealment of material facts and misrepresentation, making the process of obtaining the grant defective under Section 76 of the Law of Succession Act. However, considering the age of the estate and the need for expediency, the court exercised its discretion not to revoke the grant itself but to set aside the orders confirming the grant. This approach would allow for a fresh application for confirmation that includes the estate of Susan Karugi Gichuki, ensuring all beneficiaries are properly provided for without causing further delay in the administration of the estate.
Court Disposition
Orders confirming the grant set aside; certificate of confirmation cancelled; administrators to apply afresh for confirmation including all beneficiaries.
Orders
- The orders made on 11th April 1997 confirming the grant are set aside and the certificate of confirmation of grant is cancelled.
- The children of Susan Karugi Gichuki shall be entered into the list of persons who survived the deceased, Joel Gitu Kingangi.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
SUCCESSION CAUSE NO. 1973 OF 1994
IN THE MATTER OF THE ESTATE OF JOEL GITU KINGANGI-(DECEASED)
RULING
1. Joel Gitu King’ang’i died on 25th August 1981 Representation to his estate to his estate was sought on 30th September 1994 by his sons, John Mbugua Gitu and Joseph Njogu Gitu. A grant of letters of administration intestate was made to them on 7th December 1994.
2. In the petition lodged in court on 30th September 1994, it was expressed that he was survived by three sons, a daughter and a grandson being John Mbugua Gitu, Joseph Njogu Gitu, Teresiah Wathoni Gitu, Peter Ng’ang’a Gitu and Michael Kamau King’ang’i. He died possessed of an asset described as Dagoretti/Riruta/131.
3. The said grant was confirmed on 11th April 1997. The estate devolved upon the five named survivors of the deceased at disproportionate rates.
4. On 21st May 2013, Peter Gitu Gichuki launched an application in court dated 20th May 2013 asking that the grant made on 7th December 1994 and confirmed on 11th April 1997 be revoked. He founded the application on the ground that the estate of his mother, Susan Karugi Gichuki, a daughter was of the deceased, was not disclosed and therefore it was not provided for. He argues that the process of obtaining the grant was therefore defective and tainted by fraud and mispresentation.
5. The application was placed before me on 21st May 2013 under certificate. I certified it urgent and directed that the administrators and all the beneficiaries be served. I fixed the same for directions on 11th June 2013. I do not have evidence of service of the said application, but the respondents were represented in court when the matter came up for mention on 11th June 2013.
6. There is nothing on record to show that the respondents ever replied to the application dated 20th May 2013. Instead, the administrators filed an affidavit on 25th July 2013 proposing the amendment of the certificate of confirmation of grant dated 11th April 1997. In the said affidavit the deponent expressly concedes that Susan Karugi Gichuki was indeed a daughter of the deceased.
7. I am satisfied that the application before me reaches the threshold set by Section 76 of the Law Succession Act for revocation of grants, to the extent that it was not disclosed that the deceased had a daughter, Susan Karugi Gichuki, also deceased, who had children of her own. The non-disclosure of this information amounted to concealment of facts and a misrepresentation, making the process of obtaining the grant defective. The grant made on 7th December 1994 is therefore liable to revocation.
8. I have discretion through not to revoke it, but instead make alternative orders. The deceased died in 1981. It is important that the distribution of this estate be resolved at the earliest possible time. Revoking the grant would delay the process further. It would be prudent in this case to leave the grant intact, but set aside the orders confirming it. This would pave way for the making of a fresh application for confirmation of the grant where the estate of Susan Karugi Gichuki shall so catered for.
9. The orders that are hereby made are as follows:-
1. That the orders made on 11th April 1997 confirming the grant herein are hereby set aside and the certificate of confirmation of grant founded on those orders is hereby cancelled;
2. That the children of Susan Karugi Gichuki shall be entered into the list of the persons who survived the deceased, Joel Gitu Kingangi;
3. That the administrators shall within 45 days apply afresh for the confirmation of the grant made on 7th December 1994 and in the said application they shall provide for the estate of Susan Karugi Gichuki;
4. That in the event of failure to comply with Order (3) above, the grant made on 7th December 1994 shall stand revoked; and
5. That the matter shall be mentioned after 45 days for compliance.
DATED, SIGNED and DELIVERED at NAIROBI this 23rd DAY OF May 2014.
W. MUSYOKA
JUDGE
In the presence of Mrs. Keitany advocate for the respondent.