[2011] KEHC 309 (KLR)
The court found that the deceased, Karebe Maina alias Murage Nguku, distributed his property to his beneficiaries during his lifetime (intervivos), which the respondent referred to as an oral will. The evidence showed that the applicant had been provided for by the deceased and that the distribution of the estate...
Source-derived case information.
- Citation
- [2011] KEHC 309 (KLR)
- Parties
- Applicant: Simon Mwai Karebe; Respondent: Bernard Gichuki Murage
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 124 of 2008
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- summons for annulment of grant dismissed
- Legal Topics
- Revocation of Grant, Oral Will, Distribution of Estate, Concealment of Material Facts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Mwai Karebe
Applicant
Bernard Gichuki Murage
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by concealment of material facts.
- 2 Whether the deceased distributed his property intervivos, constituting an oral will.
- 3 Whether the applicant was excluded as a beneficiary in the succession proceedings.
Ratio Decidendi
The court found that the deceased, Karebe Maina alias Murage Nguku, distributed his property to his beneficiaries during his lifetime (intervivos), which the respondent referred to as an oral will. The evidence showed that the applicant had been provided for by the deceased and that the distribution of the estate was consistent with the deceased's wishes. There was no evidence of fraud or concealment of material facts by the respondent in obtaining the grant. The applicant's exclusion from the succession proceedings did not amount to fraudulent concealment, as he had already received his share of the estate. Consequently, the summons for annulment of the grant lacked merit and was dismissed.
Court Disposition
summons for annulment of grant dismissed
Orders
- The summons for annulment of grant is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 124 OF 2008
IN THE MATTER OF THE ESTATE OFKAREBE MAINA ALIAS MURAGE NGUKU – DECEASED
SIMON MWAI KAREBE..............................................................APPLICANT
VERSUS
BERNARD GICHUKI MURAGE..............................................RESPONDENT
JUDGMENT
The subject matter of this judgment is the Summons for revocation or annulment of grant of letters of administration intestate in respect of the Estate of Karebe Maina alias Murage Nguku, deceased. The aforesaid summons was taken out by Simon Mwai Karebe, the Applicant. Bernard Gichuki Murage, the Petitioner herein, opposed the summons by filing an affidavit. The parties involved in this dispute recorded a consent order to have it disposed of by affidavit evidence and submissions.
I have taken into account the rival affidavit evidence plus the submissions. The applicant herein has sought to have the grant revoked on the ground that the same was obtained fraudulently by concealment from court of material facts and by the making of a false statement on the part of the Petitioner. The applicant claimed he was a son of the deceased and a step-brother to the Petitioner and a brother in-law to one Peris Wambui Wahome. He stated the Petitioner had filed succession proceedings before the Karatina Resident Magistrate’s Court in respect of an intestate Estate hence there was no will left by the deceased. He alleged he was not involved in the proceedings and from the sharing of the Estate. In a nutshell the Applicant avers that the Petitioner did not disclose that the Applicant was a beneficiary to the deceased’s Estate and did not inform him of the filing of the cause. The Petitioner on his part is of the view that the deceased left an oral will to his family members. He claimed that the deceased provided for the Applicant during his lifetime by giving him L.R. NO. MAGUTU/RAGATI/264 which measures approximately 2. 5 acres. The Petitioner further stated that the deceased gave L.R. NO. MAGUTU/RAGATI/232 measuring approximately 4. 2 acres to Wahome Murage (now deceased) and Bernard Gichuki Murage as trustees. It is alleged that the aforesaid land was later subdivided into two equal portions. One subdivision each was given to Peris Wambui Wahome and Bernard Gichuki Murage i.e.
L.R. NO. MAGUTU/RAGATI/1363- Peris Wahome.
L.R. NO. MAGUTU/RAGATI/1364- Bernard Murage.
It is the Petitioner’s submission that the Applicant knew that the deceased gave his land intervivos and that is why he did not protest nor object to the proceedings at Karatina Court.
After anxiously considering the evidence and the submissions, I am convinced that Karebe Maina alias Murage Nguku, deceased, distributed his propertyintervivos. I am satisfied that is what the Petitioner refers to as the deceased’s oral will. It is apparent from the schedule of distribution of the Petitioner that the Estate was distributed according to the deceased’s wishes. I find the Petitioner not guilty of fraud nor concealment of material facts.
In the end the summons for Annulment of Grant lacks merit. It is dismissed with each party bearing his or her own costs.
Dated and delivered at Nyeri this 18th day of November 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Kamwenji for the Applicants. No appearance for the Respondent.