[2025] KEHC 2472 (KLR)

Wachira & another v Turunga (Substituted by Priscila Wambui Mutunga) & 2 others; Maina & another (Interested Parties) (Succession Cause 3 of 1998) [2025] KEHC 2472 (KLR) (6 February 2025) (Ruling)

Neutral citation: [2025] KEHC 2472 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 3 of 1998

M Muya, J

February 6, 2025

Between

Beth Nyambura Wachira

1st Applicant

Mary Ann Wambui Wachira

2nd Applicant

and

Paul Mutunga Turunga (Substituted by Priscila Wambui Mutunga)

1st Respondent

Margaret Wanjeri (Substituted by George Maina Kagio)

2nd Respondent

Benjamin Wahome Turanga

3rd Respondent

and

Mary Nyambura Maina

Interested Party

Charles Maina Chumari

Interested Party

Ruling

1. The summons for revocation or annulment of grant which are dated the 7th day of October, 2010 seek the annulment of the grant of letters of administration issued to Paul Mutunga Turanga and Margaret Njeri Kagio made on the 22nd September, 1998 and confirmed on the 13th day of October, 1999.

2. The grounds are that:-1. The grant was obtained by concealment from the court of something material to the case in that the existence of the 1st Applicant who is entitled to a share of the Estate was not disclosed.2. The grant was obtained fraudulently by making a false statement that the 2nd Applicant whose existence had been concealed nor her consent obtained had consented to the mode of distribution vide a note signed by 4 persons and filed in court on the 13th October, 1999 which the court adopted when the grant was confirmed.

3. In their replying affidavits, the interested parties state it is not true that the 1st Applicant was not aware of the filing of the Succession Cause and the subsequent confirmation of the grant.

4. That Peter Maina Wachira who was one of the beneficiaries of the Estate was a son of the 1st Applicant which fact the 2st applicant has not disclosed.

5. That after the grant was confirmed the 2nd Applicant and the Interested Party signed the transfer forms in relation to Land Parcel No. Aguthi/Gatitu/342 on 21/2/20001 and the said piece of land was registered in their names and hence the two are now the proprietors of the said parcel of land.

6. It therefore cannot be true when the 2nd applicant contends that she was not aware of the filing of the succession cause at the time.

7. That after the registration of the grant in the lands office, the 2nd applicant became reluctant towards the partitioning of the land and the interested party decided to file a suit, Civil Case No. 107 of 2009 against her to force her to have the land partitioned into two portions.

8. After the second applicant was served with summons to enter appearance in that civil suit she decided to file this application for revocation of grant to frustrate the interested party efforts of having the parcel of land partitioned in line with the certificate of confirmation.

Applicant’s Case: 9. It is the contention by the 1st Applicant that she is a daughter in law of the deceased and that her husband who is the son of the deceased passed on before the filing of the Succession Cause.

10. That when the Succession Cause was filed she was not shown as one of the beneficiaries.

11. That the 2nd Applicant is a granddaughter of the deceased.

12. The deceased had three wives hence three houses. That two houses were in agreement that the grant issued by this court ought to be revoked but the 3rd one which is represented by the 3rd Respondent had objected.

13. The 3rd Respondent alleges that there was a will which is contained in a note book and that the deceased husband of the 1st applicant had benefited from a parcel of land given to him by the deceased.

3rd Respondent’s Case: 14. The contention by the 3rd Respondent is that apart from the Succession Cause before this court, there were others related to the deceased Estate and in those Succession Causes there was no objections.

15. That the deceased had left a will which was contained in a notebook and that informs the reason why Parcel No. Aguthi/Gatitu/931 measuring 36 acres, Benjamin Wahome Turanga got 20. 4 acres and Charles Maina chumari got 16 acres.

16. On the issue of concealment, it is argued that the 1st Applicant has a son going by the name Peter Maina Wachira who was a beneficiary of the Estate and benefited from some amount of money belonging to the deceased and deposited in a bank account.

17. That the 1st applicant was not disinherited, as her husband Wachira Turunga had been given land parcel no. Aguthi/Gatitu/227 by his father (the deceased) measuring 4. 9 acres.

18. That the 2nd Applicant Mary Ann Wambui is a granddaughter of the deceased and had participated in the succession cause and together with Mary Nyambura Maina they were to share equally land parcel no. Aguthi/Gatitu/34.

Analysis and Conclusion: The Law 19. Section 76 of the Law of Succession provides:-A grant of representation, whether or not confirmed, may at any time be revoked or annulled, if the court decides, either on application by any interested party or of its own motion:-a.That the proceedings to obtain the grant were defective in substance,b.The grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case.c.That the grant was obtained by means of untrue allegation of the fact essential in point of law to justify the grant not withstanding that the allegations was made in ignorance or inadvertently.d..........................e...........................”

20. A perusal of the proceedings before the court clearly show that the 1st applicant was not included as a beneficiary in this succession cause. Her son may have been shown as a beneficiary and may have benefited from some amount of money belonging to the deceased but that alone is not sufficient evidence of the inclusion of the 1st Applicant who ought to have been a beneficiary of the Deceased Estate.

21. This Succession Cause was referred to mediation and a report was produced before the court on 29th may, 2019.

22. It is shown that Benjamin Wahome Turunga and Charles Maina Chumari did attempt to produce a will but the other beneficiaries 12 in number contested it claiming that it was a fraud.

23. It was agreed that the Estate of the Deceased Turunga Rumbere be divided in three equal shares between the three houses.

24. It is apparent that it’s only the 3rd house that brought and relied on the issue of there having been a will.

25. It is conceded that the 3rd house had benefitted from the Estate by receiving disproportionately larger parcels of land than the other houses. That’s why they brought in the issue of there having existed a will.

26. A perusal of the proceedings however does not indicate there was a will by the Deceased.

27. If there was such a will it ought to have been annexed to the Succession Cause.

Conclusion: 28. I am satisfied that there was concealment of material facts and in particular the existence of the 1st Applicant was not disclosed.

29. The letters of administration issued on 22nd September, 1998 and confirmed on 13/10/1999 are hereby revoked.

RULING READ AND DELIVERED IN OPEN COURT THIS 6TH DAY OF FEBRUARY, 2025. M. MUYAJUDGEIn the presence of:Wachira for the respondentKiminda for the applicant