[2016] KEHC 2477 (KLR)
The court found that the applicant was unlawfully disinherited from his father's estate, as his imprisonment was not for an offence that would legally bar him from inheritance. The administrator admitted the error, and since the parties could not agree on a new distribution, the court set aside the confirmation of...
Source-derived case information.
- Citation
- [2016] KEHC 2477 (KLR)
- Parties
- Applicant: James Allan Chege; Respondent: Zipporah Wambui Mumo
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 867 of 2013
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- confirmation of grant set aside; matter remitted for fresh hearing; parties to bear own costs
- Judges
- DW Mbuteti
- Legal Topics
- Succession, Revocation of Grant, Confirmation of Grant, Inheritance Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Allan Chege
Applicant
Zipporah Wambui Mumo
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the confirmation of grant that disinherited the applicant should be set aside.
- 2 Whether the applicant, as a son of the deceased, is entitled to a share of the estate despite previous disinheritance.
- 3 Whether the grant of letters of administration intestate should be revoked or remain in place.
Ratio Decidendi
The court found that the applicant was unlawfully disinherited from his father's estate, as his imprisonment was not for an offence that would legally bar him from inheritance. The administrator admitted the error, and since the parties could not agree on a new distribution, the court set aside the confirmation of grant and ordered that the matter be heard afresh in the lower court. The grant of letters of administration intestate remains in place, but the previous confirmation and distribution are nullified to allow the applicant to participate in the process and challenge the proposed distribution.
Court Disposition
confirmation of grant set aside; matter remitted for fresh hearing; parties to bear own costs
Orders
- The order of the lower court of 08/01/1999 confirming the grant is set aside and the certificate of confirmation of grant of the same date is cancelled.
- The properties comprising the estate shall revert to the name of the deceased.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
SUCCESSION CAUSE NO 867 OF 2013
IN THE MATTER OF THE ESTATE OF ELIUD KIARIE MUMO (alias ELIUD KIARII MUMO) - DECEASED
JAMES ALLAN CHEGE……….……………………….…….APPLICANT
VERSUS
ZIPPORAH WAMBUI MUMO………ADMINISTRATOR/RESPONDENT
J U D G M E N T
1. There is no dispute that the Applicant herein, James Allan Chege, is the son of the Deceased Eliud Kiarie Mumo. The Administrator Zipporah Wambui Mumo is his mother and the widow of the Deceased. She and the Deceased had 3 other children, all daughters - Rosemary Njeri Kiarie, Caroline Njambi Kiarie and Ruth Wangari. They are all alive and well.
2. A grant of letters of administration intestate in respect to the estate of the Deceased was made to the Administrator on 20/06/1998 and issued on 20/07/1998 vide Thika CM Succession Cause No 182 of 1998. That grant was confirmed on 08/1/1999 and a certificate of confirmation of grant issued on the same day. By that confirmation of grant the Applicant was totally disinherited, apparently because he was then in prison, and also because, as stated by his mother, he was a difficult son who was hostile to her and her daughters. It is common ground that he was not in prison for an offence which under the law would disentitle him to inherit any part of his father’s estate. In other words, he was not in prison for killing the Deceased.
3. It is therefore not surprising that after he left prison the Applicant applied to revoke the grant by summons dated 17/07/2013 which is the subject of this judgment. In her replying affidavit the Administrator quickly admitted her mistake in disinheriting her son and offered to make amends. However, the parties have not been able to agree on fresh re-distribution of the Deceased’s estate.
4. In these circumstances, there is only one proper thing to do, and that is to set aside the order of the lower court by which the grant was confirmed (and cancel the certificate of confirmation as well). This will enable the summons for confirmation of grant filed in the lower court to be heard afresh and thus accord the Applicant an opportunity to challenge the Administrator’s proposed distribution in the usual way.
5. In the circumstances I will make the following orders –
(a) The order of the lower court of 08/01/199 by which the grant was confirmed is hereby set aside and the certificate of confirmation of grant of the same date cancelled.
(b) The properties comprising the estate shall revert unto the name of the Deceased.
(c) For the avoidance of doubt the grant of letters of administration intestate made to the Administrator on 20/07/1998 and issued on the same date is not revoked and shall remain in place.
(d) The summons for confirmation of grant filed in the lower court shall be heard afresh by the lower court in Thika CM Succession Cause No. 182 of 1998. For that purpose the original record of that court which is before this court shall be remitted back to the lower with a certified copy of this judgment.
(e) Parties shall bear their own costs of these proceedings.
Those shall be the orders of the court.
DATED AND SIGNED AT MURANG’A THIS 13TH DAY OF OCTOBER 2016
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 14TH DAY OF OCTOBER 2016