Esther Wambui v Evan Kinyua Gachoki [2019] KEHC 5341 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

MISC. SUCC APPLICATION NO. 74 OF 2013

ESTHER WAMBUI.................................................APPLICANT

V E R S U S

EVAN KINYUA GACHOKI..............................RESPONDENT

RULING

1. This matter relates to the Estate of James Gathuri Kibage, deceased. The applicant Esther Wambui Kibage filed a summons for revocation of grant issued on 5/5/2016 and confirmed on 2/2/2007.

2. The summons is based on the grounds that the grant was obtained fraudulently by making of a false statement or by concealment from court something material to the case.  That the grant was obtained by means of an untrue allegation of a fact essential in points of law to justify the grant notwithstanding that the allegation was made in ignorance or in advertently.

3. That the person to whom the grant was made has failed to proceed diligently with the administration of the estate.

4. The application is supported by the affidavit of the applicant Esther Wambui Kibage.

Applicant’s case

The applicant states that the deceased was her husband and the grant was obtained without disclosing the beneficiaries. That the deceased left behind 3 wives at the time of his death, Esther Wambui, Josephine Wamutira and Nancy Wanjira and several children. That the deceased left behind the following assets Mutira/Kaguyu/3706, 3707 and 3708which the respondent failed to disclose. She proposed that the said properties be distributed to the wives and children of the deceased. She produced official search proving that the said properties are registered in the deceased’s names.

5. The respondent Evans Kinyua Gachoki opposed the application and filed a Replying affidavit.

Respondent’s case

In response, the respondent stated that he served the dependants with a citation notice on 17/03/2005 but they failed to institute succession proceedings and he proceeded to file with their full knowledge. That he bought Mutira/Kaguyu/3708from the deceased. That if there were other properties of the deceased, the best option was for them to make an application for rectification of grant and not revoking the same. He produced a sale agreement dated 02/01/2004 and acknowledge receipt.

6. The court gave directions that the matter be disposed off by way of viva voce evidence.  However, by consent of the parties, the directions were changed and the parties agreed to proceed by way of affidavits and submissions.  The respondent filed his replying affidavit.  The applicant filed submissions.  The respondent did not file submissions.

7. I have considered the application. The issue which arises for determination is revocation of grant.

Revocation of grant.

Section 76 of the Law of Succession Act Cap 160states;

“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) that 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 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.”

8. The applicant’s application is based on the fact that the respondent did not inform the dependants when he filed the succession proceedings and in addition, that he left out some of the deceased’s properties. The respondent’s claim is that of a purchaser and therefore he ought to have cited the dependants to file the proceedings. In his application for confirmation of grant under Succession Cause No. 211 of 2005, he claims that he served the deceased’s dependants with Citation Notice on 17/03/2005 but they did not institute succession proceedings.

9. Upon perusal of proceedings in Succession Cause No. 211 of 2005, there is no copy of the citation in the file and no copy of affidavit of service proving service as alleged by the respondent. Therefore, one cannot verify whether or not the applicant was notified of proceedings being filed. He who alleges must prove therefore the onus was on the applicant to prove that he served the dependants with citation and they refused to file succession proceedings in respect of the deceased’s estate.

10. The applicant has proved that the deceased had other dependants and other properties which were no included when the respondent filed succession and obtained the grant.  The respondent obtained the grant fraudulently by misleading the court that he had served a citation.  It is also likely that he swore false affidavits stating that he had served citation notice.  The Respondent concealed material facts from the court.

11. The grant whether confirmed or not will be revoked where it is proved that the grant was obtained fraudulently or by concealment from court of something material to the case.  It will also be revoked where the proceedings were defective in substance or was obtained by means of untrue allegations.  Where a party seeking the revocation of the grant proves any of these grounds, the court will order the grant to be revoked.

12. The applicant has established these grounds.  The grant cannot be cured by rectification as suggested by the respondent as rectification is meant to correct mistakes.  Section 74 of the Law of Succession Act Cap 160 which deals with rectification of grant provides:-

“Errors in names and descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”

13.  I find that the applicant has established sufficient grounds to warrant the court to order that the grant be revoked.  I order that the grant issued by the Resident Magistrate Kerugoya on 20th February 2007 be revoked.

Costs to the applicant.

Dated at Kerugoya this 9th  Day of July 2019.

L. W. GITARI

JUDGE