[2005] KEHC 424 (KLR)
The court found that the applicants had established, on uncontroverted evidence, that the respondent was not a relative of the deceased and had fraudulently obtained the Grant of Letters of Administration by falsely claiming to be the deceased's son and sole heir. The respondent's failure to file a timely replying...
Source-derived case information.
- Citation
- [2005] KEHC 424 (KLR)
- Parties
- Applicant: Julius Masinde Ilondanga; Applicant: Julieta Mutambi; Applicant: Jedina Khanyeleha; Applicant: Willimina Nyangayi; Respondent: Benson Muhanji Ilondanga
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 47 of 2003
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application for revocation of grant allowed; grant revoked and cancelled; costs to applicants
- Legal Topics
- Revocation of Grant, Fraudulent Obtainment of Administration, Heirship Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Masinde Ilondanga
Applicant
Julieta Mutambi
Applicant
Jedina Khanyeleha
Applicant
Willimina Nyangayi
Applicant
Benson Muhanji Ilondanga
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the Grant of Letters of Administration was fraudulently obtained by the respondent through false statements and concealment of material facts.
- 2 Whether the respondent is an heir or relative of the deceased and entitled to administer the estate.
- 3 Whether the applicants, as children of the deceased, were excluded from the succession process.
Ratio Decidendi
The court found that the applicants had established, on uncontroverted evidence, that the respondent was not a relative of the deceased and had fraudulently obtained the Grant of Letters of Administration by falsely claiming to be the deceased's son and sole heir. The respondent's failure to file a timely replying affidavit meant the applicants' averments remained unchallenged. The court held that the grant was obtained by fraud and concealment of material facts, warranting its revocation under Section 76 of the Law of Succession Act. The court therefore revoked and cancelled the grant issued to the respondent and ordered him to return the original grant to the court. Costs were awarded...
Court Disposition
application for revocation of grant allowed; grant revoked and cancelled; costs to applicants
Orders
- The Grant of Letters of Administration made on 14-2-90 to Benson Muhanji Ilondanga is revoked and cancelled.
- The respondent shall return to court the original Grant of Letters of Administration.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE 47 OF 2003
IN THE MATTER OF THE ESTATE OFILONDANGA MATONYE DECEASED)
BETWEEN
JULIUS MASINDE ILONDANGA)
JULIETA MUTAMBI & 2 OTHERS ………….....……APPLICANTS/OBJECTORS
V E R S U S
BENSON MUHANJI ILONDANGA …………..….... PETITIONER/RESPONDENT
RULING
Messrs JuliusMasinde Ilondanga, Julieta Mutambi, Jedina Khanyeleha and Willimina Nyangayi (the Applicants) made on 28. 11. 2003 an application dated 27-11-2003 by way of Summons seeking orders that the Grant of Letters of Administration made to Benson Muhanji Ilonganga, (the Petitioner) on 14-2-90 (and not on 24-6-2003 which is the date on which the Grant was issued) be revoked on the grounds that it was fraudulently obtained by making of a false statement and by concealment of material facts from the court.
In their affidavit sworn on 27th November, 2003, the Applicants averred that the Petitioner is not an heir of the deceased and that the Applicants themselves are all children of the deceased, Ilondanga Matonye Khalusi who died in 1990. They averred further that the Petitioner had made the application for the Grant of Letters of Administration in the deceased’s estate clandestinely without notifying any of them and that the Petitioner had made a false statement to the effect that he was the son of the deceased. The applicants further averred that they had welcomed the Petitioner into their home when they were away because he had taken care of their old mother and of the land. This, they seemed to say, did not make the Petitioner one of them, much less an heir.
The Petitioner was on 23-2-2004 granted leave to file and serve a replying affidavit to the applicant’s application within 14 days. He did not do so for a period close to one year. On 19-1-2005, he filed a replying affidavit without first securing an order for enlargement of time. The Applicants objected to the replying affidavit and after the contest that ensued, the court struck out the replying affidavit. As the applicant’s application for revocation was being heard, the Petitioner had no affidavit to contradict or counter any of the averments in the Applicants’ affidavit. Such averments remained uncontroverted.
It is my finding that on the material before me, the Applicants established that the Petitioner is not a relative of the deceased, that he made a false statement in the application for the Grant of Letters of Administration when he claimed to be a son of the deceased and the only heir to the estate and that he fraudulently obtained the Grant in his name.
In these circumstances, I have no hesitation in granting the application which I hereby do. I hereby revoke and cancel the Grant of Letters of Administration made on 14-2-90 to Benson Muhanji Ilondanga in the estate of the late Ilondanga Matonye Khalusi. I direct that the Respondent do return to court the original Grant. The costs of this application will be borne by the Respondent.
Dated at Kakamega this 22nd day of September, 2005.
G. B. M. KARIUKI
J U D G E