[2008] KEHC 3159 (KLR)
The court found that although the respondent failed to disclose a material fact regarding his status as a creditor, all parties, including the applicants, participated in the proceedings and did not object at the time the grant was issued. The court exercised its discretion, noting that the distribution of the...
Source-derived case information.
- Citation
- [2008] KEHC 3159 (KLR)
- Parties
- Applicant: John Murage P. Mbogo; Respondent: Gichobi Nyotu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 58 of 2005
- Procedural Posture
- Succession Application / Ruling on Summons for Annulment of Grant
- Outcome
- application dismissed
- Legal Topics
- Succession, Annulment of Grant, Fraudulent Concealment, Letters of Administration, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Murage P. Mbogo
Applicant
Gichobi Nyotu
Respondent
Procedural Posture
Succession Application / Ruling on Summons for Annulment of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently or by concealment of material facts.
- 2 Whether the procedure followed in obtaining the grant was defective in substance.
- 3 Whether the distribution of the estate prejudices the applicants.
Ratio Decidendi
The court found that although the respondent failed to disclose a material fact regarding his status as a creditor, all parties, including the applicants, participated in the proceedings and did not object at the time the grant was issued. The court exercised its discretion, noting that the distribution of the estate was equal among the sons and that the applicant would not be prejudiced by the current arrangement. Therefore, the court declined to annul the grant, finding that the matter should not be disturbed as no party would suffer prejudice.
Court Disposition
application dismissed
Orders
- The application for annulment of grant is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Succession Case 58 of 2005
In the matter of the estate of Geoffrey Nyotu Chibiri….Deceased
JOHN MURAGE P. MBOGO………………………………APPLICANT
VERSUS
GICHOBI NYOTU…………………………....…………..RESPONDENT
RULING
Summons for annulment of grant under Section 76 Succession Act. Both parties agreed to proceed on affidavits only. The grounds upon which orders are sought are that the grant of letters of administration granted to the Respondent were obtained in proceedings that were defective in substance, fraudulently by making of a false statement or by concealment from the court of something material to the case. In support the affidavit sworn by first applicant shows that the applicants are sons of deceased whereas the Respondent is not in any way related to deceased. And that Respondent made application for grant secretly and got it confirmed without informing the applicant. The respondent awarded himself one acre of estates land.
In reply the Respondent says that it was agreed by the family for him to take a grant since the applicants and their mother failed to do so. And that he had purchased a portion belonging to Mwai Nyotu and that proceedings were taken openly in court and not secretly. He denies being guilty of fraud. The respondent is also supported by affidavit of Mwai Nyotu one of the brothers of applicants.
I have perused the record in the Succession Case No. 61 of 1997. On 8/7/1998 applicants were in court when the Respondent was granted Letters of Administration there being no objection from any of the parties who were present including the applicants herein described himself as “son” of deceased. No objection was taken by the parties present. The procedure followed by the parties is not irregular a creditor can be issued with a grant under Section 66 (d) Succession Act. However this was not disclosed before court. It was a material fact. I therefore find that the grant was obtained by means of an untrue allegation of a fact essential in the point of law to justify the grant notwithstanding that the allegation was made out of ignorance or inadvertently. It is clear all parties participated in the deceipt. However the powers of court are discretionary not mandatory. I have noted that the distribution is not objected to being equal among the sons and the son who sold his share is not to take anything extra.
It is my view that the matter should not be disturbed as it is clear the Applicants will not be prejudiced. I therefore dismiss the application with no order as to costs.
Dated this 11th February, 2008.
J. N. KHAMINWA
JUDGE
11/2/2008
Khaminwa – Judge
Njue – Clerk
Mr. Utuku HB for Mr Kagio
Njeru Nyaga
Read in open court.
J. N. KHAMINWA
JUDGE