[2015] KEHC 7255 (KLR)
The court found that the respondent failed to disclose the 2nd applicant as a dependant and beneficiary, amounting to concealment of a material fact. Additionally, the 1st applicant's alleged consent was not proven to be genuine, as the respondent did not counter the forgery claim. The law requires full disclosure...
Source-derived case information.
- Citation
- [2015] KEHC 7255 (KLR)
- Parties
- Applicant: Leah Wahu Kimani; Applicant: Machariah Njoroge; Respondent: Francis Nganga Kihiu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2301 of 2009
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Grant revoked; estate to revert to deceased's name; transactions revoked; costs to respondent.
- Judges
- AO Muchelule, DN Musyoka
- Legal Topics
- Succession, Grant of Letters of Administration, Beneficiary Rights, Revocation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leah Wahu Kimani
Applicant
Machariah Njoroge
Applicant
Francis Nganga Kihiu
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the applicants were properly included as beneficiaries in the petition for grant of letters of administration.
- 2 Whether the consent of the 1st applicant was forged or validly obtained.
- 3 Whether the non-disclosure of the 2nd applicant as a dependant constituted concealment of material facts.
Ratio Decidendi
The court found that the respondent failed to disclose the 2nd applicant as a dependant and beneficiary, amounting to concealment of a material fact. Additionally, the 1st applicant's alleged consent was not proven to be genuine, as the respondent did not counter the forgery claim. The law requires full disclosure of all beneficiaries and their consents for the grant and its confirmation. The procedural irregularities and non-compliance with statutory requirements rendered the grant and its confirmation invalid. Consequently, the grant issued to the respondent and all resultant transactions were revoked, and the estate was ordered to revert to the name of the deceased.
Court Disposition
Grant revoked; estate to revert to deceased's name; transactions revoked; costs to respondent.
Orders
- The grant issued to the respondent on 24 July 2008 and confirmed on 15 April 2009 is revoked.
- The entire estate shall revert into the names of the deceased.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
SUCCESSION CAUSE NO. 2301 OF 2009
IN THE MATTER OF THE ESTATE OF JANET WAMBUI KIHIU (DECEASED)
BETWEEN
LEAH WAHU KIMANI............................... 1ST APPLICANT
MACHARIAH NJOROGE.......................... 2ND APPLICANT
VERSUS
FRANCIS NGANGA KIHIU........................... RESPONDENT
JUDGMENT
1. The deceased died on 20th October 1999. The respondent (her son) petitioned for a grant of letters of administration in Thika Chief Magistrate’s Court Succession Cause No. 393 of 2007. The grant was issued on 24th July 2008 and confirmed on 15th April 2009.
2. The 1st applicant was the daughter in-law of the deceased. She was the wife of the son of the deceased called Kimani Kihiu. The 2nd applicant was the grandson of the deceased. His mother was Njoki Kihiu who died in 1952. Njoki was the daughter of the deceased. The 1st applicant’s case was that she was a beneficiary of the deceased’s estate who had not been informed of the filing of the petition and subsequent proceedings. The record shows that she consented to the confirmation of the grant, but denied that she had given the consent. She denied the fingerprint impression on record, saying that it was forgery as she always executes her documents by signing. The 2nd applicant‘s case was that since 1964 she was staying with the deceased on the said land (LOC.5/GITURA/120) which she left to him. He had, nonetheless, not been listed as a beneficiary and neither had his consent been sought or procured by the respondent.
3. Section 51 of the Law of Succession Act (Cap 160) and Rule 7(1)(e) of the Probate and Administration Rules provide that an application for grant of letters of administration should contain the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased. The non-disclosure of the 2nd applicant as a grandson of the deceased, and therefore dependant of the deceased, was concealment of a material fact.
4. Secondly, the allegation that the consent of the 1st applicant was forged was not countered. Rule 40(8) of the Rulesprovides for the requirement of consent of all dependants and other persons who may be beneficiaries entitled to the estate in the application for confirmation. The 1st applicant’s consent was not sought, neither was the consent of the 2nd applicant sought or obtained.
5. These are the reasons why the grant that was issued to the respondent on 24 July 2008 and confirmed on 15 April 2009 is ordered revoked. The entire estate shall revert into the names of the deceased. Any transactions resulting from the grant are revoked. Costs shall be paid by the respondent.
DATED at NAIROBI this 29th day of April 2015
A.O. MUCHELULE
JUDGE
DELIVERED at NAIROBI this 30th day of April 2015
W. MUSYOKA
JUDGE