[2014] KEHC 8393 (KLR)
The court held that the applicants' filing of a separate succession cause after a grant had already been issued to the respondent was a nullity. The applicants were aware of the respondent and her children, and their omission from the proceedings was not inadvertent but fraudulent, amounting to concealment of...
Source-derived case information.
- Citation
- [2014] KEHC 8393 (KLR)
- Parties
- Applicant: Margaret Chelangat Onguti; Applicant: William Onguti; Respondent: Teresia Kerubo Onguti
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2775 of 2006
- Procedural Posture
- Succession Cause / Ruling on Application to Amend Grant and Annulment of Parallel Proceedings
- Outcome
- Application dismissed; parallel proceedings annulled; applicants allowed to bring claim in original cause within 30 days.
- Judges
- AO Muchelule
- Legal Topics
- Succession, Grant of Letters of Administration, Monogamous Marriage, Concealment of Material Facts, Annulment of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Chelangat Onguti
Applicant
William Onguti
Applicant
Teresia Kerubo Onguti
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Amend Grant and Annulment of Parallel Proceedings
Legal Issues
- 1 Whether the applicants could maintain a separate succession cause after a grant had already been issued to the respondent in respect of the same estate.
- 2 Whether the omission of the respondent and her children from the applicants' cause was inadvertent or fraudulent.
- 3 Whether the applicants and their children have any legal interest in the estate of the deceased.
Ratio Decidendi
The court held that the applicants' filing of a separate succession cause after a grant had already been issued to the respondent was a nullity. The applicants were aware of the respondent and her children, and their omission from the proceedings was not inadvertent but fraudulent, amounting to concealment of material facts. The court annulled all proceedings in the parallel succession cause and cancelled the grants issued therein. However, in the interests of justice, the applicants were granted 30 days to bring their claim to the estate in the original succession cause, where the court would determine their interest, if any, in the estate.
Court Disposition
Application dismissed; parallel proceedings annulled; applicants allowed to bring claim in original cause within 30 days.
Orders
- All proceedings in High Court Succession Cause No. 1626 of 2010 at Nairobi in respect of the deceased Joseph Willis Onguti are annulled.
- Certificates of Grant and Confirmation issued to the applicants in the parallel cause are cancelled.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 2775 OF 2006
IN THE MATTER OF THE ESTATE OF
JOSEPH WILLIS ONGUTI (DECEASED)
MARGARET CHELANGAT ONGUTI........1ST APPLICANT
WILLIAM ONGUTI....................................2ND APPLICANT
VERSUS
TERESIA KERUBO ONGUTI........................RESPONDENT
RULING
The deceased JOSEPH WILLIS ONGUTI died intestate on 15th July 2006. On 15th November 2006 his widow TERESIA KERUBO ONGUTI (the respondent) applied to be granted letters of administration in respect of the estate. She stated that the deceased had left her with five children, namely LUCY MORAA ONAMI, PETER OYARO ONGUTI, ANNE NYAMBOKE ONGUTI, MARK ONGUTI AND MARGARET KEMUNTO ONGUTI. A grant was issued to her on 1st December 2006 and confirmed on 21st July 2009. The properties of f the estate were NAIROBI/BLOCK 103/18, NAIROBI/BLOCK 23/455, KISII-WEST KITUTU/BOGEKA/648, 1000 shares in Kenya Airways and money in Barclays Bank A/C [particulars withheld].
On 13th August 2010, MARGARET CHELANGAT ONGUTI and WILLIAM ONGUTI (the applicants) went to the same registry and in a different file (the present file) and filed a separate Cause in respect of the same deceased. They sought to be granted letters of administration intestate. The 1st applicant (MARGARET) was saying that she was the deceased’s widow and that they had the following children:- WILLIAM ONGUTI (2nd applicant) KIREKI ONGUTI, ANDREW MZEE ONGUTI and MAURINE NYANJOKA ONGUTI. On 31st March 2011 the grant was issued, and on 25th July 2011 the same was confirmed. The properties in the estate were indicated as Buruburu Phase 2 Block 213/6, South C Plot No. 103/18 House No. 17, money at Barclays Bank and Shares at Kenya Airways.
On 8th June 2012 the applicants applied under sections 74and75of theLaw of Succession Act (Cap 160) to have the grant issued to them amended to include the respondent and her children. She sought that there be an amended sharing so that Buruburu House Phase 2/Block 213/6, South C Plot No. 103/18 House No. 17, Barclays Bank money and the Kenya Airways shares all go to her house; that South B Plains View House No. 455 goes to the respondent’s house; and each house gets half of the 5 acres in Kisii West Kitutu/Bugeka/648. Her case was that she had inadvertently left out the respondent and her children when filing the Cause. She also had inadvertently not included the 5 acres and the house at Plains View. In the affidavit sworn to support the application she acknowledged that the respondent was the wife of the deceased with whom they had the named children. She stated that the respondent was the deceased’s second wife.
The respondent swore an affidavit in response in which she stated that she was married to the deceased under the African Christian Marriage and Divorce Act (Cap 151), and that was a monogamous marriage which could not allow the deceased to contract any other form of marriage. She denied that the 1st applicant was the wife of the deceased. She also denied that the children of the 1st applicant were children or dependants of the deceased.
Once the respondent got a grant in respect of the deceased’s estate no other Cause could be filed by the applicants, or any other person, over the same estate. What the applicants purported to do was a nullity.
Secondly, the applicants knew that the deceased was married to the respondent and that they had children. It was fraudulent, and not inadvertence, to file the Cause without reference to them. This concealment of material facts cannot help the situation.
These are the reasons why I annul all the proceedings in High Court Succession Cause No. 1626 of 2010 at Nairobi in respect of the deceased JOSEPH WILLIS ONGUTI, and order the cancellation of the Certificates of Grant and Confirmation that were therein issued to the applicants.
In the wider interests of justice, I allow the applicants 30 days to bring their claim to the estate in High Court Succession Cause No. 2775 of 2006 at Nairobi. It is in such an application that the court shall receive evidence to determine what interest, if any, that the 1st applicant and her children have in the estate.
In the meantime, the application dated 23rd April 2012 and filed on 8th June 2012 by the applicants is dismissed with costs.
DATED and DELIVERED at NAIROBI this 6th October 2014.
A.O. MUCHELULE
JUDGE