[2017] KEHC 7207 (KLR)
The court found that the respondent obtained the grant of letters of administration and its confirmation fraudulently by failing to seek the applicant's consent and by omitting the applicant and her children as beneficiaries. The respondent's actions amounted to concealment of material facts, which is a ground for...
Source-derived case information.
- Citation
- [2017] KEHC 7207 (KLR)
- Parties
- Applicant: Konsolata Goko Atieno; Respondent: Wilfrida Opiyo Kirowa
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 276 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application for revocation of grant allowed; grant and certificate of confirmation revoked; fresh grant to issue jointly to applicant and respondent; title deed to be deposited in court; property to revert to deceased; costs to respondent.
- Judges
- EM Muchoki
- Legal Topics
- Revocation of Grant, Fraudulent Non Disclosure, Succession Procedure, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Konsolata Goko Atieno
Applicant
Wilfrida Opiyo Kirowa
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration and subsequent confirmation were obtained fraudulently by the respondent.
- 2 Whether the omission of the applicant and her children as beneficiaries constituted concealment of material facts.
- 3 Whether the failure to obtain consent from all beneficiaries invalidated the grant and its confirmation.
Ratio Decidendi
The court found that the respondent obtained the grant of letters of administration and its confirmation fraudulently by failing to seek the applicant's consent and by omitting the applicant and her children as beneficiaries. The respondent's actions amounted to concealment of material facts, which is a ground for revocation under section 76 of the Law of Succession Act. The court held that the rules require all beneficiaries to be disclosed and their consent obtained in writing for both the grant and its confirmation. The respondent's failure to comply with these requirements rendered the grant and its confirmation defective. Consequently, the court revoked the grant and the certificate...
Court Disposition
application for revocation of grant allowed; grant and certificate of confirmation revoked; fresh grant to issue jointly to applicant and respondent; title deed to be deposited in court; property to revert to deceased; costs to respondent.
Orders
- The grant and the subsequent Certificate of Confirmation issued to the respondent is hereby revoked.
- A fresh grant of letters of administration shall issue to the applicant and the respondent jointly.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO. 276 OF 2013
IN THE MATTER OF THE ESTATE OF THE LATE WILFRIDA OKUTO OPIYO (DECEASED)
AND
IN THE MATTER OF APPLICATION FOR REVOCATION OF GRANT BY
KONSOLATA GOKO ATIENO …........................................... APPLICANT/OBJECTOR
AND
WILFRIDA OPIYO KIROWA …....................................... RESPONDENT/PETITIONER
RULING
Having heard the evidence of both parties I am persuaded that the application for revocation of the grant issued to the Respondent has merit. This is because the grant was obtained fraudulently. The Respondent did not seek the consent of her sister in-law – the applicant in this case yet they are persons of equal priority. Indeed she did not list the applicant's name and those of her children as survivors of the deceased in Form P & A 5 whose requirement is mandatory. Instead and with intend to defraud she listed the name of the applicant's husband who according to her died while the petition was on-going. She did not however inform the Court of his demise but instead proceeded to obtain confirmation of the grant as if there were no other persons surviving the deceased. Not even her children were listed as beneficiaries yet she told this Court that she has children. The rules require that the consent to the confirmation of grant and also the mode of distribution be obtained from all beneficiaries. The same is in form of writing and is filed together with the application for confirmation. By omitting to do so the respondent's application both for letters of administration and for confirmation of grant was rendered defective not to mention that it amounts to concealment of facts which were material.
The application/summons for revocation has merit and accordingly this Court makes orders as follows:-
1. That the grant and the subsequent Certificate of Confirmation issued to the respondent is hereby revoked.
2. That, a fresh grant of letters of administration shall issue to the applicant and the respondent jointly.
3. That the said grant shall be confirmed within three (3) months of this ruling.
4. That for the avoidance of doubt the title deed issued to the Respondent is hereby revoked and the same shall be deposited in Court within fourteen (14) days of this ruling.
5. The asset Kisumu/West Sidho/130 shall revert to the name of the deceased.
6. The Respondent shall bear the costs of this application.
Signed, dated and delivered at Kisumu this 9th day of March 2017
E. N. MAINA
JUDGE
In the presence of:-
Mr. Odeny for the Applicant/Objector
Respondent in person
Court Assistant – Serah Sidera
INTERPRETATION: English/Dholuo