[2014] KEHC 4890 (KLR)
The court found that the applicant was a stranger to the estate, having no familial or legal relationship with the deceased, and thus was not entitled to benefit from the estate or to seek revocation of the grant. The purported sale of the estate property to the applicant by the respondent's former husband was...
Source-derived case information.
- Citation
- [2014] KEHC 4890 (KLR)
- Parties
- Applicant: Sirintai Ene Polonet Kuso; Respondent: Payiaton Ene Kionga Tutaa
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1075 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation of Grant
- Outcome
- application dismissed with costs to the respondent
- Judges
- LN Mutende
- Legal Topics
- Revocation of Grant, Intestate Succession, Beneficiaries Entitlement, Fraudulent Concealment, Intermeddling With Estate, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sirintai Ene Polonet Kuso
Applicant
Payiaton Ene Kionga Tutaa
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation of Grant
Legal Issues
- 1 Whether the grant of representation was obtained by fraudulent concealment of material facts.
- 2 Whether the objector is entitled to be included as a beneficiary of the deceased's estate.
- 3 Whether the sale of the estate property to the objector was lawful.
Ratio Decidendi
The court found that the applicant was a stranger to the estate, having no familial or legal relationship with the deceased, and thus was not entitled to benefit from the estate or to seek revocation of the grant. The purported sale of the estate property to the applicant by the respondent's former husband was unlawful, as he had no authority to dispose of the deceased's property. The respondent, as the widow of the deceased, and her children were the rightful beneficiaries. The court also noted that the respondent's omission of names in the initial application was not intentional concealment, given her illiteracy, and that all beneficiaries were later included at the confirmation stage....
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for revocation of grant is dismissed.
- Costs awarded to the respondent/petitioner.
Full Case Text
Judgment text and source record
23 paragraphs
NO. 270/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 1075 OF 2011
IN THE MATTER OF THE ESTATE OF KIROTE OLE KAMUORO (DECEASED)
SIRINTAI ENE POLONET KUSO ….…........…………………OBJECTOR
VERSUS
PAYIATON ENE KIONGA TUTAA ...........................................PETITIONER
R U L I N G
The application dated 15th December 2011 is for revocation of a grant of representation issued to Payiaton Ene Kionga Tutaa and confirmed on the 3rd March 2011. It is premised on grounds that the certificate of confirmation of the grant was obtained by fraudulent concealment of material facts; the Petitioner fraudulently presented herself as the wife of the deceased yet she is the wife of the deceased’s brother, Kionga Raurau Kamoro ole Tutaa who sold the parcel of land known as Kajiado/Delalekutok/2965; the Petitioner applied for the grant secretly even without the knowledge of her husband who on discovering filed an objection which was later withdrawn; the objector is an interested party in the land and did not know that this matter was in court until 21st October 2011; she has lived on the parcel measuring 10 acres since December 2003 and has developed it immensely hence should be included as a beneficiary of the estate.
In a reply thereto, the Petitioner states that the deceased was her husband. They had three (3) issues of the marriage. Prior to her marriage to the deceased, she was married to Kionga Raurau Kamoro with whom they had three children. She was chased away from the matrimonial home whereby she married the deceased who was allocated land parcel No. 48which later became Kajiado/Dalalekutok/2965.
She stated further that the estranged husband started claiming the property of the deceased and even brought in the objector his lover to try and push the real beneficiaries out of the parcel of land. After filing of the Succession Cause the former husband filed an objection which he later withdrew. She instructed the Land Registrar Kajiado to restrict her former husband from interference with the deceased’s asset. The purported sale of land to the objector was intermeddling with the property of the deceased.
She concluded by stating that she was under no obligation to refund what her former husband fraudulently acquired from the objector as there was no connection between the objector and the beneficiaries of the deceased.
At the stage of application of a grant, the applicant is required to disclose the names of beneficiaries to the Estate of the deceased. In this case at the point of making the application the Petitioner did not give any names. Having thumb-printed on the form, it is evident that she is illiterate therefore it cannot be interpreted that she concealed the information as even her own name is not included.
A grant of letters of administration intestate was issued to the Petitioner on the 18th April 2007. When she made an application for confirmation of the grant, all beneficiaries were stated. She was included as a dependant. The grant was confirmed and the only asset that formed the Estate of the deceased namely Kajiado/Dalalekutok/2965 was distributed to the Petitioner(wife to the deceased) and Lekayia Kionga (son to the deceased).
The deceased died on the 18th November 1999. It is stated that in the year 2003, Kionga Raurau Kamoro a friend and neighbour to the applicant and also a husband (or former husband) to the Petitioner who was not a dependant or administrator to the Estate of the deceased offered to sell part of the Estate of the deceased to the applicant. He purportedly received some Ksh.16,000/= from her and disappeared.
It is trite law that no person, even one with a temporary grant can interfere with the free property of the deceased person unless he/she is authorized by law. (See Section 45 of the Law of Succession Act). The law criminalizes such an action. It was unlawful for such a person to have purported to dispose off the property of the deceased herein.
The applicant herein who has no relationship with the deceased cannot purport to have acted in good faith. Similarly she intermeddled in the Estate of the deceased.
This was a case of total intestacy; persons surviving the deceased would be his surviving spouse, children, parents, brothers and sisters who depended on the deceased. The applicant herein, a stranger does not fall into that category. In the premises she has no right to cause the grant to be revoked.
From the foregoing, the application lacks merit. Accordingly, it is dismissed with costs to the Respondent/Petitioner.
DATED, SIGNEDand DELIVERED at MACHAKOS this 21STday of MAY, 2014.
L.N. MUTENDE
JUDGE