[2013] KEHC 2626 (KLR)
The court found that the respondent had omitted the names of his siblings and failed to obtain their consent when petitioning for the grant of letters of administration, amounting to concealment of material facts and a defective process. As the application was unopposed and the facts in the applicant's affidavit...
Source-derived case information.
- Citation
- [2013] KEHC 2626 (KLR)
- Parties
- Applicant: Tabitha Kamene Nzioka; Respondent: Daniel Mutua Nzioka
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 149 of 2008
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation or Annulment of Grant
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Revocation of Grant, Probate and Administration, Fraudulent Non Disclosure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Kamene Nzioka
Applicant
Daniel Mutua Nzioka
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation or Annulment of Grant
Legal Issues
- 1 Whether the grant of letters of administration was obtained fraudulently by false statement or concealment of material facts.
- 2 Whether the grant was obtained by means of an untrue allegation essential in law.
- 3 Whether the proceedings to obtain the grant were defective in substance.
Ratio Decidendi
The court found that the respondent had omitted the names of his siblings and failed to obtain their consent when petitioning for the grant of letters of administration, amounting to concealment of material facts and a defective process. As the application was unopposed and the facts in the applicant's affidavit were uncontroverted, the court held that the requirements for revocation under section 76 of the Laws of Succession Act were met. The grant was therefore revoked, and costs awarded to the applicant.
Court Disposition
application allowed
Orders
- The grant of letters of administration issued to the respondent is revoked.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
SUCCESSION CAUSE NO. 149 OF 2008
IN THE MATTER OF THE ESTATE OF NZYOKA MWANIKI (DECEASED)
TABITHA KAMENE NZIOKA …………………............… APPLICANT
VERSUS
DANIEL MUTUA NZIOKA ………………………………. RESPONDENT
R U L I N G
The Summonsfor revocation or annulment of grant dated 2/5/2012 is brought under section 76 of the Laws of Succession Act and Rule 44 (1) of the Probate and Administration Rules.
The application is based on the grounds that:-
The grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case.
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 proceedings to obtain the grant were defective in substance.
The background facts as set out in the affidavit in support sworn by the Applicant on 2/5/2012 is that the grant of letters of administration issued to the complainant were confirmed on 23/2/2009. It is contended that the Respondent omitted the names of his siblings when he indicated in the petition that he was the only beneficiary. The Applicant has averred that consent of the other beneficiaries was not obtained prior to the filing of the petition.
The application is unopposed. No papers were filed in opposition to the application. The facts set out in the Applicant’s supporting affidavit therefore remain uncontroverted. Consequently, the application is allowed with costs to the Applicant.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 4thday of July 2013.
………………………………………
B. THURANIRA JADEN
JUDGE