[2016] KEHC 7067 (KLR)
The court found that the grant was obtained without disclosure of the applicant, who was entitled as a beneficiary by virtue of her marriage to the deceased's son. This non-disclosure constituted concealment of material facts, warranting revocation of the confirmation of grant. However, the court, guided by Section...
Source-derived case information.
- Citation
- [2016] KEHC 7067 (KLR)
- Parties
- Applicant: Redempta Mutei Ngutu; Respondent: Muthye Ngutu Kiteme
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 5 of 2015
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- Confirmation of grant revoked; grant remains with respondent; applicant to file affidavit of protest; costs to respondent.
- Judges
- LN Mutende
- Legal Topics
- Revocation of Grant, Non Disclosure of Beneficiaries, Probate and Administration, Entitlement of Spouses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Redempta Mutei Ngutu
Applicant
Muthye Ngutu Kiteme
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by concealment of material facts.
- 2 Whether the applicant, as a wife of a deceased son, was entitled to benefit from the estate and should have been included as a beneficiary.
- 3 Whether the confirmation of grant should be revoked due to non-disclosure of all beneficiaries.
Ratio Decidendi
The court found that the grant was obtained without disclosure of the applicant, who was entitled as a beneficiary by virtue of her marriage to the deceased's son. This non-disclosure constituted concealment of material facts, warranting revocation of the confirmation of grant. However, the court, guided by Section 66 of the Law of Succession Act, determined that the respondent, as the widow of the deceased, should remain administratix. The appropriate remedy was to revoke the confirmation of grant and allow the applicant to file an affidavit of protest, ensuring all beneficiaries are considered in the distribution of the estate.
Court Disposition
Confirmation of grant revoked; grant remains with respondent; applicant to file affidavit of protest; costs to respondent.
Orders
- The order confirming the grant is revoked.
- The applicant shall have 21 days to file an affidavit of protest in accordance with Rule 40(6) of the Probate and Administration Rules.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
SUCCESSION CAUSE NO. 5 OF 2015
IN THE MATTER OF THE ESTATE OF SIMON NGUTU ALIAS SIMON NGUTU KITEME (DECEASED)
REDEMTA MUTEI NGUTU.................................................APPLICANT
VERSUS
MUTHYE NGUTU KITEME.............................................RESPONDENT
R U L I N G
Joseph Nzomo Ngutu,(deceased) died domiciled in Kenyaon the 17th June, 1989. Letters of Administration intestate (grant) in respect of his Estate were granted to Muthye Ngutu Kiteme.
On the 8th October, 2015, Redempta Mutei Ngutu,the Applicant, approached this court by way of summons for revocation of grant seeking orders that: (i) She is the wife of Joseph Nzomo Ngutunow deceased, the first son of the deceased whose Estate is a beneficiary; (ii) The Certificate of Confirmation of grant issued to Muthye Ngutu Kitemeat Mwingi Principal Magistrate’s Courton 28th November, 2012be revoked.
The application is premised on grounds that: The proceedings to obtain the grant were defective in substance; The grant was obtained fraudulently by the making of false statements and concealment from court of material facts; The grant was obtained by means of untrue allegations of facts essential in point to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently and the property of the deceased’s Estate has not been properly distributed.
Also included in the body of the application is that: The Succession Cause was clandestinely filed by the Petitioner who excluded the Applicant, a wife of Joseph Nzomo.
The application is unopposed.
The Certificate of Confirmation of grant issued to the Respondent herein indicates shares of heirs to the Estate of the deceased as:
Alice Mutongoi Ngutu
Virginia Mwikali Ngutu
Penina Mutindi Ngutu
Winfred Nzambi Ngutu
Properties forming the Estate of the deceased were identified as: Plot No. Mwingi/Mbondoni/915and Plot No. Miguani/Mbondoni/921were to be registered in the name of the Respondent who was to hold them for herself and in trust for other beneficiaries aforestated.
The letter written by the Assistant Chief, Kavuoni Sub-locationhas the name of Joseph Nzomo Ngutuincluded as the son of the deceased. The Applicant herein adduced evidence of a certificate of marriage solemnized between Joseph N. Ngutuand the Applicant herein. It is indicated that at the time of solemnizing their marriage in 1999,they were already married under the customary law.
This perse is evidence that she was entitled to benefit from the Estate of Joseph N. Ngutu.This fact was not disclosed at the point of confirmation of grant.
A grant may be revoked if it established that it was obtained following concealment of something material from the court. (See Section 76(b)of the Law of Succession Act).
In the matter of the Estate of Thereki Wangunyualso known as Thareka Wangunyo HCSUCC No. 1996 of 1999where a widow obtained a grant of representation without disclosing one of her stepchildren and some of her own children as beneficiaries, the court held that she merited the revocation of the grant but ordered that instead it would order that the stepchildren left out be included in the list of beneficiaries without interfering with the grant.
The grant herein was made to the Respondent in her capacity as the widow of the deceased. Guided by Section 66of the Law of Succession Act,this court would still prefer the Respondent being the surviving spouse as the administratix of the Estate. In the premises the grant issued will remain intact. However, the order confirming the grant be and is hereby revoked. In the result I proceed to make orders as follows:
The Applicant shall have 21 days within which to file an affidavit of protest in accordance with Rule 40(6) of the Probate and Administration Rules.
Consequently, a date of hearing of the arising dispute shall be fixed at the registry (Mwingi Law Court).
Costs of the application shall be borne by the Respondent.
It is so ordered.
Dated, Signedand Deliveredat Kituithis 19thday of January,2016.
L. N. MUTENDE
JUDGE