[2013] KEHC 2449 (KLR)
The court found that the 1st Respondent did not deny receiving express instructions from the Applicant not to include her as a beneficiary, and that he breached the trust placed in him by preparing a false schedule of distribution contrary to her wishes. This constituted a serious transgression and misrepresentation...
Source-derived case information.
- Citation
- [2013] KEHC 2449 (KLR)
- Parties
- Applicant: Teresa Wanjiru Thindiu; Respondent: Peter Mathenge Thindiu; Respondent: Margaret Njeri Maina; Respondent: Mary Nyambura Mathenge; Respondent: Catherine Nyambura Mathenge; Respondent: Aloisius Weru Mathenge; Respondent: Rose Muthoni Kimenyi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1170 of 2010
- Procedural Posture
- Succession Cause / Ruling on Summons for Revocation of Grant
- Outcome
- Summons for revocation of grant allowed; grant revoked.
- Judges
- JK Sergon
- Legal Topics
- Revocation of Grant, Succession Procedure, Distribution of Estate, Life Interest, Trust and Fiduciary Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Wanjiru Thindiu
Applicant
Peter Mathenge Thindiu
Respondent
Margaret Njeri Maina
Respondent
Mary Nyambura Mathenge
Respondent
Catherine Nyambura Mathenge
Respondent
Aloisius Weru Mathenge
Respondent
Rose Muthoni Kimenyi
Respondent
Procedural Posture
Succession Cause / Ruling on Summons for Revocation of Grant
Legal Issues
- 1 Whether the grant issued on 19th December, 2011 should be revoked due to misrepresentation or fraud by the 1st Respondent.
- 2 Whether the Applicant was misled into consenting to a distribution schedule contrary to her instructions and interests.
- 3 Whether the 1st Respondent breached a fiduciary duty owed to the Applicant in the administration of the estate.
Ratio Decidendi
The court found that the 1st Respondent did not deny receiving express instructions from the Applicant not to include her as a beneficiary, and that he breached the trust placed in him by preparing a false schedule of distribution contrary to her wishes. This constituted a serious transgression and misrepresentation of material facts to the court. As such, the requirements for revocation of grant under Section 76 of the Law of Succession Act were met. The court was satisfied that the Applicant had established sufficient grounds for revocation, and accordingly allowed the summons for revocation of grant as prayed.
Court Disposition
Summons for revocation of grant allowed; grant revoked.
Orders
- The grant issued on 19th December, 2011 is revoked.
- Any subsequent actions or distributions based on the revoked grant are set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
SUCCESSION CAUSE NO. 1170 OF 2010
IN THE MATTER OF THE ESTATE OF THINDIU MATHENGE GITHAMBO – (DECEASED)
TERESA WANJIRU THINDIU …........................... APPLICANT
VERSUS
PETER MATHENGE …...............................1ST RESPONDENT
MARGARET NJERI MAINA …...................2ND RESPONDENT
MARY NYAMBURA MATHENGE …...........3RD RESPONDENT
CATHERINE NYAMBURA MATHENGE …4TH RESPONDENT
ALOISIUS WERU MATHENGE ….............5TH RESPONDENT
ROSE MUTHONI KIMENYI …..................6TH RESPONDENT
RULING
The summons for revocation of grant dated 30. 12. 2011 taken out by Teresa Wanjiru Thindiu, the Applicant herein, seeks to have the grant given to them on 19th December, 2011, revoked. The summons is supported by the affidavit of the applicant. She deponed in her affidavit that she requested Peter Mathenge Thindiu,the 1st Respondent, to assist her to process these succession proceedings since he was familiar with court procedures and that she trusted that he will not go behind her back. The Applicant further averred that she instructed the 1st Respondent to distribute the parcel of land knowns as L.R. NO. Aguthi/Gatitu/1087as follows:
Mary Nyabmura Mathenge - 2 ½ acres
Catherine Nyambura Mathenge – ¼ acres
Aloisius Weru Mathenge – 3 ¼ acres
Stephen Maina Thindiu – 3 ¼ acres
The applicant stated that she expressly told the 1st Respondent that she was not interested to have a share of the deceased's Estate since she was entitled to a life interest. She further avers that the 1st Respondent misled her together with the other beneficiaries to sign papers consenting to the confirmation of grant believing the 1st Respondent followed her instructions. The Applicant says she was surprised to later learn that she was given 1 ¼ acres of land to be excised from L.R.NO. Aguthi/Gatitu/1087. The Applicant pointed out that the aforesaid share was given to her through the trickery of the 1st Respondent hence the grant should be revoked.
Peter Mathenge Thindiu, the 1st Respondent herein swore a replying affidavit which he filed to oppose the summons. He denied misleading his mother, the Applicant herein. He claimed his mother was not tricked but conscientiously signed the consent forms. The 1st Respondent stated that the deceased had shared out his land inter vivos with intent to transfer to the beneficiaries in the manner he proposed.
Having considered the rival averments and the submissions placed before this court, it is clear that the 1st Respondent does not deny that the Applicant had given him express instructions not to include her as a beneficiary to the Estate of the deceased. In my view, I am convinced that the 1st Respondent breached the trust bestowed upon him by his mother and proceeded to prepare a false schedule of distribution. That schedule of distribution went against the wishes of the actual administratrix of the deceased 's Estate. That was a serious transgression which entitles this court to revoke the grant on the ground that certain facts were presented to mislead the court. I am satisfied that the summons for revocation of grant dated 30. 12. 2011 is well founded. It is allowed as prayed.
Dated, signed and delivered this 23rd day of August, 2013
J.K. SERGON
JUDGE
In open court in the presence of Miss Kahinga for Applicant
Kingori for Respondent