[2015] KEHC 437 (KLR)
The court found that the respondent obtained the grant of representation by forging the applicant's signature and making false representations to the court. The respondent also failed to consult or obtain consent from other beneficiaries, including the applicant and his sisters, before being appointed as...
Source-derived case information.
- Citation
- [2015] KEHC 437 (KLR)
- Parties
- Applicant: Mohamed Ndwiga Kithaka; Respondent: Lawrence Njeru Ndwiga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 474 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application for revocation of grant allowed; grant revoked
- Legal Topics
- Revocation of Grant, Probate and Administration, Forgery of Signatures, False Representation, Consent of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Ndwiga Kithaka
Applicant
Lawrence Njeru Ndwiga
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of representation was obtained fraudulently by making a false representation to the court.
- 2 Whether the respondent forged the applicant's signature in the process of obtaining the grant.
- 3 Whether the respondent failed to consult or obtain consent from other beneficiaries before being appointed administrator.
Ratio Decidendi
The court found that the respondent obtained the grant of representation by forging the applicant's signature and making false representations to the court. The respondent also failed to consult or obtain consent from other beneficiaries, including the applicant and his sisters, before being appointed as administrator. Furthermore, the court determined that the respondent was not a son of the deceased and therefore not entitled to be appointed as administrator. These actions constituted sufficient grounds under section 76 of the Succession Act for revocation of the grant. The court concluded that the applicant had proved his case and ordered the revocation of the grant issued to the...
Court Disposition
application for revocation of grant allowed; grant revoked
Orders
- The grant of representation issued to the respondent is hereby revoked.
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 474 OF 2011
IN THE MATTER OF THE ESTATE OF ANISIA WANJIRA KANENE alias ANISIA WANJIRA WAWERU (DECEASED)
MOHAMED NDWIGA KITHAKA.........................................................APPLICANT
VERSUS
LAWRENCE NJERU NDWIGA …......................................................RESPONDENT
RULING
This is an application for revocation of the grant issued to the respondent. It is brought pursuant to the enabling Provisions of rule 44 (3) of the Probate Administration made under the Succession Act (Cap 60 Laws of Kenya). The application is based on the applicant's affidavit in support of summons for revocation of the grant.
The application is unopposed. The respondent was properly served and had adequate notice of the hearing date. For this reason, I ordered the hearing to proceed in the absence of the respondent and his counsel.
The applicant gave evidence in which he adopted his witness statement as evidence. He also adopted his affidavit as evidence in this court in support of revocation.
I believe the evidence of the applicant that the respondent forged his signature which forgery was reported to the police. The respondent then proceeded to have himself appointed as administrator of his mother's estate.
Furthermore, the evidence of the applicant (PW 1) is supported by his two sisters (PW 2 and PW 3). The evidence of the applicant's sisters is that they were not consulted by the respondent, before he was appointed the administrator of their mother's estate.
They have also stated that they do not know how the respondent became the administrator.
I believe the evidence of the applicant (PW 1) and his sister's (PW 2 and PW 3) that the respondent never consulted them and did not have their consent to be appointed the administrator.
I also find the respondent was not the son of the deceased.
Furthermore, I find that the respondent made a false representation to the court in obtaining the grant of representation, which is one of the grounds upon which a grant may revoke a grant in terms of section 76 of the Succession Act (Cap 160 laws of Kenya)
The court is entitled to revoke a grant at any time if it was irregularly obtained in breach of section 76, Succession Act.
In the light of the foregoing, I find that the applicant has proved his case against the respondent. And for this reason, the grant issued to him is hereby revoked. There will be no orders as to costs.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this.. 9th .. day of NOVEMBER .2015
In the presence of Mr Kamunyu and in the absence of the respondent.
Court clerk Nyaga
J.M. BWONWONGA
JUDGE
09. 11. 15