[2014] KEHC 4885 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 80 OF 2007

IN THE MATTER OF THE ESTATE OF MUTUNE MUTUNG’I ALIAS MUTUNE MUTUNG’I (DECEASED)

RAYMOND NDANDI MUTUNE…………..PETITIONER/APPLICANT

VERSUS

NDINDI MUTUNE………………………………………….1ST RESPONDENT

PETER KIOKO NDAVI…………………………………….2ND RESPONDENT

RULING

Mutune MutungialiasMutune Mutungi died on the 2nd July, 1991. His survivors petitioned for Letters of Administration intestaste. A Grant of Letters of Administration intestate was issued to Raymond Ndandi Mutuneto administer his estate on the 24th June, 2008.

On the 9th July, 2007 Ndindi Mutune, the widow to the deceased and beneficiary to his estate sold Plot No. 42B Kangundo Marketan asset forming part of the Estate of the deceased to Peter Kioko Simon at a consideration of Kshs. 450,000/=. Thereafter the grant issued was confirmed and a certificate thereof issued on the 17th February, 2012.

Peter Kioko Ndavi filed an application dated 18th October, 2012 seeking issuance of an order of prohibition against the petitioner to transfer, dispose off, or alienate Plot No. 42B and annulment of the confirmed grant.

The Petitioner raised a Preliminary Objection to the application seeking an order striking it out. The Preliminary Objection that was raised on points of law was premised on grounds that the allegations raised in the application are purely of a civil/contractual nature that can only be pursued in a Civil Court against persons who were involved in the transaction. The property in issue belonged to the estate of the deceased and purchase of the same amounts to intermeddling with the estate. Annulment of the grant cannot be a redress thereto.

In determining whether or not the Preliminary Objection raises any points of law, I would revert to what was stated in the case of Mukisa Biscuit Manafucturing Co. Ltd versus West End Distributors Ltd [1969] E.A. 696. It was held that a preliminary must be on a pure point of law and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

The background of the matter as aforestated clearly shows that the person who disposed off part of the estate of the deceased was his widow but not a personal representative to the estate. She lacked locus standi to transact on behalf of the estate of the deceased. As a surviving spouse she was entitled to a life interest on the property of the deceased. She could sell some of the property for her maintenance but not immovable properly and this could only be done with the consent of the court and the consent of her children. ( See section 37 of the Law of Succession Act).

The action of the widow of the deceased amounted to a criminal act of intermeddling with the estate of the deceased ( see section 45of the Law of Succession Act).

In the premises, the issue whether or not this court should entertain the application dated 18th October, 2012 in the instant Succession Cause instead of the matter being pursued as a Civil Cause is purely on points of law. This is a matter that will be determined with finality without ascertaining any other facts.

From the foregoing it is apparent that the relief the purchaser is entitled to can be obtained from a Civil Court. Circumstances in which a grant can be annulled are set out in Section 76of theLaw of Succession Act which stipulates thus;-

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

That the proceedings to obtain the grant were defective in substance;

that the grant was obtained fraudulently by the making of false statement or by the concealment from the court of something material to the case;

that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

that the person to whom the grant was made has failed, after due notice and without reasonable cause either –

to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has order or allow; or

to proceed diligently with the administration of the estate; or

to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs(e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

e). that the grant has become useless and inoperative through subsequent circumstances.

Intermeddling with the estate of the deceased is not one of the conditions. The grant cannot be annulled on that ground.

Having considered the Preliminary Objection raised, I find it having merit. The same is upheld. Therefore the application dated 18th October, 2012 stands struck out. Costs to the respondent/Petitioner.

DATED, SIGNEDand DELIVERED at MACHAKOS this 23RD day of MAY 2014.

L.N. MUTENDE

JUDGE