[2017] KEHC 2168 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 270 OF 2011

IN THE MATTER OF THE ESTATE OF PETER MEME MWENDA (DECEASED)

JOHN MUREA MWENDA..................................................1ST PETITIONER

SILAS MWITHALI MEME..................................................2ND PETITIONER

- Versus -

IBRAHIM MWONGERA MEME............................................1ST OBJECTOR

PATRICK NJIRU MEME.......................................................2ND OBJECTOR

MARTHA KAGENDO MEME...............................................3RD OBJECTOR

RULING

[1] This Succession Cause has a sad history. Be that as it may, before me is Summons brought pursuant to Section 47 and 76 of the Law of Succession Act CAP 160 of the Laws of Kenya and Rule 44 of the Probate and Administration Rules. The significant orders sought by the Objectors are: (1) Injunction against the Petitioners; (2) inhibition upon L.R NO ITHIMA/NTUNENE/1537, 1543, 1535 & 1536; (3) leave to file summons for revocation; and (4) stay of implementation of the confirmed grant herein. The major reasons cited are:

1. THAT the Grant of Letters of Administration and Grant confirmed were obtained illegally, unprocedurally and criminally by the Petitioners.

2. THAT the Petitioners are fraudsters; they are neither biological nor adopted children of the deceased.

3. THAT the 2nd Petitioner had attempted to evict the rightful beneficiaries from the estate, thus, leading to violence.

4. THAT the Petitioner known as Silas Mwithali Meme is an imposter and is officially known as Silas Mwithali M’ Mauta and according to central registry records he is not related to the deceased. And that the Report by the D.C.I.O Maua filed pursuant to the order of the court confirmed these things.

[2] The said Application is grounded on the affidavits sworn by the Objectors and Peter Kirimi Mbogo and Margaret Nchororo.

Objectors’ claim: 2nd Petitioner an imposter

[3] According to the Objectors, whereas the 1st Petitioner was their father’s brother, the 2nd Petitioner was a known gangster who had taken over administration of their father’s estate while claiming to be their brother. The 2nd Petitioner was merely their father’s tenant but after the death of their father he refused to pay rent. This default to pay rent prompted the 1st Objector filed suit in Embu Rent Restriction Cause No. 4 of 2008. All that time the 2nd Petitioner was known as Silas M’ Theka though he has used other set of names and has various identity cards, some of which were investigated following an order of this court and the 2nd Petitioner was established vide a report filed by the D.C.I.O in court on 20th February 2013.

Submissions by the Objectors

[4] The Objectors submitted in support of their claim herein. More central in their submissions was that that they were all biological children of the deceased and that the 1st Petitioner was a sibling of the deceased. In their view, the issues in controversy in these proceedings are twofold: (1) the paternity of the 2nd Petitioner; and (2) the identity of the 2nd Petitioner who was known by various names such as Silas Mwithali Meeme, Silas Mwithali M’ Mauta and Silas Mitheka. According to them, following an order of this court dated 13th November 2012, directed to the D.C.I.O to investigate the paternity of the 2nd Petitioner, the report filled in court dated 19th February 2013 on 20th February 2013, established that the 2nd Petitioner’s father was known as Aloise M’ Mauta and that his mother was Kathini Kaanjo and that further in the confirmed Grant the Petitioners distributed the estate to the following strangers: George Murungi, Musa M’ Mwiti, Job Muthigani, Sam Mwenda, Joseph M’ Kailanya and Salesio Mithika.

[5] The Objectors further argued that during confirmation of the Grant none of the Objectors were present in court and ironically, they could only have been represented by imposters. In addition, the confirmed Grant did not give any property to the 3rd Objector who is the acknowledged daughter of the deceased. The Objectors further contended that the 1st Petitioner being a brother of the deceased cannot be entitled to this Grant in priority to the Objectors who are the children, dependants and beneficiaries of the deceased. Consequently the Objectors urged the court to revoke and/or annual the Grant.

Petitioners opposed the application

[6] The application was opposed via Grounds of Opposition and a Replying Affidavit filed in court on 13 December 2016 where the Petitioners contended inter alia that this application was an afterthought and that the Grant herein was obtained in the presence of all the parties and that further the report by the DCIO Maua was as a result of a bigger and wider scheme by counsel formerly on record to defraud the estate for personal gain. The Petitioners also submitted in support of their standpoints and more specifically denied that the 2nd Petitioner was an imposter. They stated that he was the 1st born of the deceased. According to them, the Objectors did not raise any paternity issue during the lifetime of the deceased and that the identity card could not prove paternity or dependence. Therefore, the Objectors had not demonstrated to the court how the issuance and Confirmation of the Grant was obtained illegally, unprocedurally, and criminally by the Petitioners. Consequently, the Petitioner urged the court to dismiss the Summons for Revocation of Grant for being incompetent and unmerited.

DETERMINATION

[8] Upon careful consideration of this application and the rival submissions by the parties, I am of the following view. The application under consideration raises very serious issues. It has been claimed that strangers, fraudsters and imposters have intruded these proceedings; were appointed administrators and shared out the estate to strangers. I am aware that these claims forced the court to refer the matter to the Criminal Investigation Department for investigation and according to a report filed by the D.C.I.O Maua police station pursuant to this court’s order on 12th March 2013, the 2nd Petitioners father was said to be Aloise M’ Mauta while his mother was Kathini Kaanjo and were said to be residing at Lewa Down within Buuri District. The 2nd Petitioner made general averment in his submissions that an identity card cannot prove paternity or dependence. But, the contents in the D.C.I.O’s report remain largely uncontroverted. Its probative value should not therefore be diminished in the manner the 2nd Petitioner has attempted to do. Without discussing the findings in the report, at this stage it only suffices to state that matters herein are of a serious nature and should be given due attention by the court. ,

[9] Again, very pertinent arguments have been advanced such as; that the objectors were not involved in these proceedings as they ought to be in law; and strangers and persons not entitled to apply obtained letters of administration of the estate fraudulently and shared out the estate to strangers. It is not in doubt that the Objectors are children of the deceased and would be entitled to apply for revocation of grant. The application before me is not however for revocation of grant but for leave to file a summons for revocation of the grant. The law is that a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion. See section 76 of the Law of Succession Act. My view is that withdrawal of an earlier application for revocation is not by itself a bar to any subsequent application for revocation of the grant. As for the other arguments on; whether or not the consent or renunciation of right to apply for letters of administration by the Objectors was sought or obtained before the filing of this succession cause; paternity of the 2nd Petitioner; and whether or not the objectors were present during the hearing of summons for confirmation are matters for determination in an application for revocation. I will not therefore discuss them for now.

[12] In conclusion, the Objectors are entitled to apply for revocation of grant and I direct them to file and serve a summons for revocation of grant within 21 days of today. Meanwhile I issue a temporary injunction against the Petitioners to restrain them from carrying out any eviction of the objectors from the suit lands; and (2) inhibition shall be registered upon L.R NO ITHIMA/NTUNENE/1537, 1543, 1535 & 1536. These orders will subsist until the next mention date that I will fix. In light of the circumstances of this cause, I will not make any order for costs. It is so ordered.

Dated, signed and delivered in open court at Meru this 4th day of October 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Kithinji advocate for Objectors

1st and 3rd Objectors present

1st Petitioner in person –absent

2nd Petitioner – present

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F. GIKONYO

JUDGE