[2015] KEHC 2718 (KLR)
The court found that the applicants failed to provide sufficient evidence of fraud or concealment of material facts in the inclusion of plot No. 27 Nguluni Market as an estate asset. The applicants did not produce any sale agreement from the deceased or documents from the local government confirming their ownership....
Source-derived case information.
- Citation
- [2015] KEHC 2718 (KLR)
- Parties
- Respondent: Ndinda Mathuku; Respondent: Sammy Kitusa Mathuku; Respondent: Joel Nzioka Mathuku; Applicant: Herman Musembi Muloki; Applicant: Patrick Malaki Mutuku alias Babu Mutuku
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Appeal 25 of 2006
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Revocation of Grant, Fraudulent Concealment, Ownership Disputes, Succession Assets
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndinda Mathuku
Respondent
Sammy Kitusa Mathuku
Respondent
Joel Nzioka Mathuku
Respondent
Herman Musembi Muloki
Applicant
Patrick Malaki Mutuku alias Babu Mutuku
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the confirmed grant of Letters of Administration should be revoked on grounds of fraudulent inclusion of plot No. 27 Nguluni Market as an estate asset.
- 2 Whether the applicants established fraud or concealment of material facts regarding the ownership of plot No. 27.
Ratio Decidendi
The court found that the applicants failed to provide sufficient evidence of fraud or concealment of material facts in the inclusion of plot No. 27 Nguluni Market as an estate asset. The applicants did not produce any sale agreement from the deceased or documents from the local government confirming their ownership. The only sale agreement produced by the 2nd applicant was with a third party, not the deceased. The court concluded that the applicants had not established a legal or factual basis for revocation of the grant. The remedy, if any, lay in a civil suit rather than in succession proceedings. Accordingly, the application for revocation of the grant was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application dated 10/5/2011 for revocation of grant is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 25 OF 2006
IN THE MATTER OF THE ESTATE OF STEPHEN MATHUKU KAVUU (DECEASED)
NDINDA MATHUKU
SAMMY KITUSA
JOEL NZIOKA MATHUKU .............. ADMINISTRATORS/RESPONDENTS
VERSUS
HERMAN MUSEMBI MULOKI
PATRICK MALAKI MUTUKU ALIAS BABU MUTUKU ……APPLICANTS
R U L I N G
The application dated 10/5/2011 seeks orders that the confirmed grant of Letters of Administration intestate and the certificate thereof issued by this Honourable Court to Ndinda Mathuku, Sammy Kitusa Mathuku and Joel Nzioka Mathuku on the 10/3/2008 be revoked (or annulled).
It is stated in the affidavit in support that plot No. 27 at Nguluni Market was fraudulently included herein as an asset in the estate of the deceased. That it was concealed from the court that the said plot was jointly owned by the deceased and one Stephen Nzuki Luli. That the said Stephen Nzuki Luli sold the said plot to the 1st Applicant and to one Kituku Kiala at a sum of Kshs.330/= in 1955/1956.
That the new owners subdivided the plot into No. 27 A and 27B. That the 1st Applicant developed the plot by building a permanent shop and a store on plot No. 27A while the deceased was alive and nobody objected. That the plot No. 27B was later sold in 1989 to the 2nd Applicant who has since developed the same and has built a shop, a store and residential premises. The Applicants have further asserted that upon obtaining the grant, the Respondents sued the Applicants in RMCC Kangundo 229/2008 seeking orders, inter alia, to evict them from the plots in question.
The application proceeded ex parte. The Respondents did not file any papers in opposition to the application although they were served.
The application was canvassed by way of written submissions which I have considered.
When the Respondents petitioned the court, they listed three properties as the assets comprising the estate of the deceased. No liabilities were listed. The plot No. 27 Nguluniwhich is the subject matter of this application is one of the listed assets. A letter from the Town Clerk, Kangundo Town Council confirming ownership by the deceased of plot No. 27 Nguluni Market measuring 30 x 100 was also filed herein. The grant was confirmed on 10/3/2008.
The Applicants claim to have purchased the plot in question. Although the 1st Applicant claims to be in occupation of ½ share of the plot he has not exhibited any sale agreement. The 2nd Applicant who claims the other ½ share has exhibited a sale agreement which reflects that he purchased plot No. 27B measuring 100 x 15 feet at a sum of Kshs.12,000/= on 2/7/1989 from one Joseph Munyao Mbuvo. None of the Applicants have exhibited any sale agreement from the deceased either directly or through any other purchaser who purchased the suit property from the deceased. None of the Applicants have exhibited any documents from the Local Government to confirm that they own the suit property.
With the foregoing, I find that the Applicants have failed to establish any fraud or concealment of material facts. Probably the Applicants’ remedy lies in a civil suit. The application has no merits and is dismissed.
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 19thday of March 2015.
B. THURANIRA JADEN
JUDGE