[2009] KEHC 42 (KLR)
The court found that the applicant failed to establish any false statement or material non-disclosure by the respondents in obtaining the grant. The applicant did not demonstrate his relationship to the deceased or prove that he was a beneficiary or dependant entitled to a share of the estate. The court held that...
Source-derived case information.
- Citation
- [2009] KEHC 42 (KLR)
- Parties
- Respondent: Joshua Kipngeno Sang; Respondent: Recho Chemutai Sang; Respondent: Sofia Wangechi; Applicant: Joseph Kipkemoi Cheptiony
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 35 of 2003
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Succession, Revocation of Grant, Dependant Status, False Statement, Non Disclosure, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Kipngeno Sang
Respondent
Recho Chemutai Sang
Respondent
Sofia Wangechi
Respondent
Joseph Kipkemoi Cheptiony
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration should be revoked on grounds of false statement or non-disclosure of material facts.
- 2 Whether the applicant is a beneficiary or dependant entitled to a share of the deceased's estate.
- 3 Whether the proper procedure was followed in challenging the grant.
Ratio Decidendi
The court found that the applicant failed to establish any false statement or material non-disclosure by the respondents in obtaining the grant. The applicant did not demonstrate his relationship to the deceased or prove that he was a beneficiary or dependant entitled to a share of the estate. The court held that the proper procedure for a person claiming to be a dependant who has not been provided for is to file an application under Section 26 of the Law of Succession Act, not to seek revocation of the grant. As the applicant did not follow the correct procedure and failed to substantiate his claims, the application for revocation of grant was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for revocation of grant is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KERICHO
Succession Cause 35 of 2003
IN THE MATTER OF THE ESTATE OF THE LATE
KIPRUTO ARAP SANG …………………………....DECEASED
AND
JOSHUA KIPNGENO SANG……..… 1ST PETITIONER/RESPONDENT
RECHO CHEMUTAI SANG………...2ND PETITIONER/RESPONDENT
SOFIA WANGECHI…………….3RD PETITIONER/RESPONDENT
AND
JOSEPH KIPKEMOI CHEPTIONY ………………..APPLICANT
RULING
Application for Revocation of grant dated8th April 2009
I. Background
1. The deceased Kipruto Arap Sang passed away on30th January, 2003aged 74 years old.The cause of death was cardiopulmonary arrest due to Malaria.
2. He left surviving him three houses.(The deceased was a polygamist).
(i)House No.1
The widow is deceased.Joshua Kipngeno Rutto the eldest son in that house represented the home disclosing three children.
(ii)House No.2
Recho Chemutai Sang the widow to the deceased representing that 2nd house having five children.
(iii)House No.3
Sofia Wangechi Sang the widow to the deceased representing the third house having three children.
3. All three applied as administrators/administratrix to the estate on3rd April 2003and disclosed the numerous assets held by the deceased.
4. Temporary letters of grant intestate was issued on 26th June, 2003 P&A 41 (Lesiit J) Kenya gazette was issued on 7th April, 2003 by the then Deputy Registrar.
5. After a period of four years letters of confirmation of grant was issued to the three on 1st February, 2007 D. Musinga J.The administratix had taken the service of J. K. Kirui & Co. Advocates.
6. On31st October 2006. One Joseph Kipkemoi Cheptiony filed for Revocation of grant.
II; Revocation of grant application.
7. This application filed under form P&A 107 & an affidavit form P&A 14 stated that the grant be revoked on grounds that the same was made by a false statement.
8. The respondents administrator on receiving the said application P&A 107, P&A 144 and form P&A 69 asking that they file a replying affidavit.(The court directions having been taken exparte to show persons to be served with the application)
9. The respondent filed a notice of appointment (P&A 63)now appointing a new advocate M/S Tengekyon & Koske Co. Advocates.
10. In the affidavit filed by Recho Chemutai Sang she brought it to the court’s attention that the applicant had not disclosed how he is related to the deceased or any of the petitioners.She denied that the appellant was a beneficiary to the estate, that the applicant was a survivor with Recho Sang, that the petitioners had concealed from the court material facts and that, it was denied the applicant be included in the estate.
11. On the day called out for hearing on10th November, 2009of the grant, the applicant nor his advocate attended court.
12. The respondent was heard exparte and in the absence of the applicant.
III. Findings
13. It is the allegation of making a false statement or failure to disclose a material fact that has to be disclosed to this court in order to seek revocation.The criteria are found in Section 76 of the LawofSuccession Act. Cap.160 Laws ofKenyanone of the items requiring revocation has been disclosed.
14. The application appears to be that the applicant and not been provided for.In such a case, revocation of grant is not what is filed but an application under Section 26 of the Law of Succession Act seeking to prove that one is a dependant and had not been provided for.Form P&A 10 should have been filed under a protest before confirmation of grant. As this has now passed the only alternative is to apply for revocation of grant proceedings or dependency proceedings.
15. I would dismiss this application for revocation of grant with costs to the respondents as having no merits.
Dated this 23rd day of November 2009 at Kericho.
M. A. ANG’AWA
JUDGE
Advocates
J. K. Koskey Advocate instructed by M/S Tengekyon & Koske Co. Advocates for the Petitioners
N/A for M/S G. M. Maengwe & Co. Advocates for the applicants.