[2012] KEHC 2789 (KLR)
The court found that the grant was obtained by misrepresenting the value of the estate as Kshs. 100,000, when in fact the estate included assets worth millions of shillings. This misrepresentation rendered the proceedings defective and brought the matter outside the jurisdiction of the Kiambu Resident Magistrate...
Source-derived case information.
- Citation
- [2012] KEHC 2789 (KLR)
- Parties
- Applicant: Mary Wanjiru Njenga; Respondent: Administrators of the Estate of Njenga Gathii (Respondents)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2764 of 2011
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- grant revoked; costs to applicant; respondents restrained from further dealings with estate property
- Judges
- CN Mugo
- Legal Topics
- Revocation of Grant, Jurisdiction of Magistrates Court, Fraudulent Obtainment of Grant, Administration of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wanjiru Njenga
Applicant
Administrators of the Estate of Njenga Gathii (Respondents)
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant issued by the Kiambu Resident Magistrate Court should be revoked due to defective proceedings and fraudulent misrepresentation.
- 2 Whether the Kiambu Resident Magistrate Court had jurisdiction to issue the grant given the value of the estate exceeded the statutory limit.
- 3 Whether the administrators failed to diligently administer the estate and acted prejudicially to the beneficiaries.
Ratio Decidendi
The court found that the grant was obtained by misrepresenting the value of the estate as Kshs. 100,000, when in fact the estate included assets worth millions of shillings. This misrepresentation rendered the proceedings defective and brought the matter outside the jurisdiction of the Kiambu Resident Magistrate Court. The administrators' actions in selling estate property before confirmation of the grant and without proper administration were prejudicial to the beneficiaries and contrary to their fiduciary duties. The respondents did not contest the application, and the evidence presented by the applicant was unchallenged. Consequently, the court held that the grounds for revocation...
Court Disposition
grant revoked; costs to applicant; respondents restrained from further dealings with estate property
Orders
- The grant issued by the Kiambu Resident Magistrate’s court on 30th August 2010 is revoked.
- The respondents are restrained from any further dealings with the estate property pending further orders of the court.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI LAW COURTS)
Succession Cause 2764 of 2011
IN THE MATTER OF THE ESTATE OF NJENGA GATHII-DECEASED
RULING
1. This ruling is delivered in the summons for revocation of grant dated 13th December 2012, brought under Section 76 (a)(b)(d)(i) and (ii) of the Law of Succession Act (Cap 160 of the Laws of Kenya). The applicant prays that the grant issued to the three respondents by the Kiambu Resident Magistrate Court in Succession Cause No: 128 of 2010 be revoked on the grounds that:
(i)The proceedings to obtain the grant were defective in substance.
(ii)The grant was obtained fraudulently by the making of a false statement.
(iii)The persons (respondents) to whom the grant was made have failed after due notice and without reasonable cause to apply for confirmation of grant and have failed to proceed diligently with the administration of the estate.
(iv)The Kiambu Resident Magistrates’ Court has no jurisdiction to hear the succession cause under Section 48 of the Law of Succession Act.
2. The application is supported by the affidavit of Mary Wanjiru Njenga the applicant who is unmarried daughter of the deceased intestate, Joseph Njenga Gathii, who died on 15th September 2000, as confirmed by the death certificate annexed to the said affidavit as Annexture “A”.
3. The grant was issued on 30th August 2010 pursuant to a petition filed in that court sometime in January 2010 ( Form P&A 80 does not bear the court stamp but its dated 28th January 2010 ). Form P&A 5 filed in support of the application is shown to have indicated that the value of the estate was Kshs. 100,000/=. Subsequent to obtaining the grant but before confirming the same, the administrators (respondents) embarked on selling certain of the estate properties including:
i)0. 93 acres of L.R. No: 4886/8 at an agreed purchase price of Kshs.9. 5 Million of which Kshs. 600,000 was received by the respondents and shared out. The particulars of the transaction are contained in the copy of an agreement for sale dated 14th October 2010 between the administrators and Kirunje Investments Limited, exhibited as annexture “D” of the supporting affidavit.
ii)Shares of the deceased in Limuru Daily sole at Kshs.2. 4 million
4. The summons for revocation was served upon the respondents but nothing has been filed in response thereto. Counsel for the respondents attended court on13th June 2012 and intimated that he had no desire to file a replying affidavit.
5. A presumption is made, therefore, the facts constituting the grounds supporting the summons are not disputed. The annextures cited above are clear proof of grounds 1 & 2 of the summons and are demonstrative of the fact that the administrators have failed in their undertaking to faithfully administer the estate according to the law and for the interests of the beneficiaries for whom they are trustees of the estate property.
6. The jurisdiction of the magistrate’s court under Section 48 of the Law of Succession Act is limited to the administration of estates whose value does not exceed 100,000/=. Except by special appointment by the Chief Justice, to represent a high court in certain cases under Section 47, a Resident Magistrate has no jurisdiction to deal with any succession cause the value of which exceeds the statutory limit. There is no evidence that the Resident Magistrate in the matter in question had any such powers. Even so the facts before me clearly show that the grant was obtained by misrepresentation of the fact that the estate was valued at Kshs.100,000/=.
7. The actions by the administrators are not only prejudicial to other beneficiaries but are also illegal. I am satisfied that the application has merit and ought to be allowed. Accordingly the grant issued by the Kiambu Resident Magistrate’s court on 30th August 2010 is hereby revoked. The applicants shall have costs of the application.
8. In the interest of justice, I order that the respondents be restrained from any further dealings with the estate property pending further orders of the court.
9. Orders accordingly.
DATED, SIGNED and DELIVERED at NAIROBI this 27th DAY OF JULY, 2012.
M.G. MUGO
JUDGE
In the presence of :
for the applicant.
for the respondent.