[2007] KEHC 1459 (KLR)
The court found that the grant of letters of administration issued to Francis Njeru Njine was obtained fraudulently and in contravention of the Law of Succession Act. The applicant, as the widow of the deceased, was not notified of the succession proceedings and was entitled to be considered as the preferred...
Source-derived case information.
- Citation
- [2007] KEHC 1459 (KLR)
- Parties
- Applicant: Mary Kanini Njine; Respondent: Stephen Ndegwa Mwangi; Respondent: Francis Njeru Njine; Respondent: Irene Wothaya
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 133 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Revoke Grant of Letters of Administration
- Outcome
- grant revoked in favour of applicant
- Judges
- MM Kasango
- Legal Topics
- Revocation of Grant, Letters of Administration, Fraudulent Misrepresentation, Succession Proceedings, Widow Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Kanini Njine
Applicant
Stephen Ndegwa Mwangi
Respondent
Francis Njeru Njine
Respondent
Irene Wothaya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Revoke Grant of Letters of Administration
Legal Issues
- 1 Whether the grant of letters of administration issued to Francis Njeru Njine should be revoked due to fraud or procedural defects.
- 2 Whether the applicant, as widow of the deceased, was entitled to be notified and considered in the succession proceedings.
- 3 Whether the sale of estate property to third parties affects the revocation of the grant.
Ratio Decidendi
The court found that the grant of letters of administration issued to Francis Njeru Njine was obtained fraudulently and in contravention of the Law of Succession Act. The applicant, as the widow of the deceased, was not notified of the succession proceedings and was entitled to be considered as the preferred administrator. The conviction of Francis Njeru Njine for false swearing provided clear evidence of fraudulent misrepresentation to the court. The fact that estate property had been sold to third parties did not preclude the court from revoking the grant, as the focus at this stage was on the validity of the grant itself, not the subsequent transactions. Accordingly, the court revoked...
Court Disposition
grant revoked in favour of applicant
Orders
- The Grant of Letters of Administration issued to Francis Njeru Njine on 21st June 1998 in RM SUC Cause No. 77 of 1987 is revoked.
- The applicant Mary Kanini Njine is awarded the costs of the summons dated 27th March 2002 as against Francis Njeru Njine.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Misc Appli 133 of 2002
MARY KANINI NJINE…………….……………………..….APPLICANT
Versus
STEPHEN NDEGWA MWANGI
FRANCIS NJERU NJINE
IRENE WOTHAYA……………...…………….………..RESPONDENTS
RULING
The Applicant has brought a summons dated 27th March 2002. In that application the Applicant Mary Kanini Njine seeks that the Grant of Letters of Administration issued to Francis Njeru Njine on 21st June 1998 in RMCC SUC. No. 77 of 1977 be revoked. The basis of seeking that order is that the application to obtain the grant and confirmation of grant were defective in substance. That the grant was obtained fraudulently by making false statements or by concealment from the court material to the cause. Further that the confirmation was by means of untrue allegations of facts. In the affidavit in support the Applicant stated that the deceased Njine Mwara was her husband. She lived with him and her children on property NGARIAMA/MERICHI/461 but she later learnt that Francis Njeru Njine had applied for Letters of Administration to the estate of her late husband. She confirmed that she is the widow of the deceased and she was not informed of the petition and since she lives in the rural area she did not discover that the petition had been filed. That in filing for the Petition the said Njine fraudulently misrepresented material facts to the court. In that regard she relied on the judgment of the criminal case No. 2897 of 2000 against the said Francis Njeru Njine. The particulars of the charge against him were as follows:
“that on the 11th day of January, 1988 at Kerugoya Law Court before Miss Florence Muchemi a Resident Magistrate and a person authorised to administer an oath sworn falsely upon a matter of public concern that he was the only surviving heir to the estate of Njine Mwara.”
He was convicted and sentenced of the charge of false swearing contrary to Section 114 of the Penal Code.
In opposition affidavits in reply were filed by persons who claim to be purchasers of the property belonging to the estate. They opposed the revocation of the grant because they had purchased some portions of the estate property from the Petitioner Francis Njeru Njine. They deponed that they are innocent buyers for value. In his replying affidavit the Petitioner stated that he had sold property NGARIAMA/MERICHI/461 and Plot No. 27 Kianyaga. He said that the only property remaining was 1. 12 hectares registered as NGIRIAMA/MERICHI.1416. He therefore said that the present application is overtaken by events.
Section 76 provides the conditions on which the court will revoke or annul a grant. A grant will be revoked or annulled even after confirmation where the proceedings of obtaining such a grant are defective in substance or where it is obtained by fraudulently making false statements amongst other grounds. The Applicant being a widow is the preferred person to be allowed to get the grant of the estate of her husband. See Section 66 of the Law of Succession Act. That being the case and since what is before court is an application to revoke the grant, the court finds that the application is merited. At this stage the court is not concerned on whether the property of the estate has been sold. Accordingly the court does hereby revoke the Grant of Letters of Administration issued to Francis Njeru Njine on 21st June 1998 in RM SUC Cause NO. 77 of 1987. The Applicant Mary Kanini Njine is awarded the costs of the summons dated 27th March 2002 as against Francis Njeru Njine.
Dated and delivered at Nyeri this 2nd day of October 2007.
MARY KASANGO
JUDGE