Gati Maroa Wangera & Esther Mbone v Lucas Mwita Machera & Nyanswi Mwita Habuba [2016] KEHC 5803 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

SUCCESSION CAUSE NO. 595  OF 2014

IN THE MATTER OF THE ESTATE OF: MARGARITA MWITA MACHERA (DECEASED)

-BETWEEN-

GATI MAROA WANGERA......…………............................1STOBJECTOR / APPLICANT

ESTHER MBONE …...........................................................2ND OBJECTOR/APPLICANT

-VERSUS-

LUCAS MWITA MACHERA....…....................................1ST APPLICANT/RESPONDENT

NYANSWI MWITA HABUBA..........................................2ND APPLICANT/RESPONDENT

RULING

1. This ruling relates to the Summons for Revocation/Annulment of Grant dated 16/09/2015 which was taken out by the Applicants GATI MAROA WANGERA and ESTHER MBONE.  The application  is supported by the Affidavit of GATI MAROA WANGERA sworn on 16/09/2015 and filed in court together with the summons on 17/09/2015.

2. The Summons is opposed by the Petitioners/Administrators LUCAS MWITA MACHEKA and  NYANSWI MWITA HABUBA through the Replying Affidavit of LUCAS MWITA MACHERA sworn on 03/11/2015 and filed in Court.

3. The parties upon concurrence of this court filed written submissions to the Summons herein hence resulting to this ruling.

4. I have taken the path of tracing the history of this matter and that has led me to Succession Case No. 44 of 2012 filed at the SRM'S Court at Kehancha and the Misc. Civil Application No. 278 of 2013 filed at the High Court at Kisii (hereafter referred to as “theKehancha case”and “the  Kisii case”respectively).

5. When LUCAS MWITA MACHERA filed the Kisii case on 03/06/2013, he through an Affidavit in support of his prayer that the grant which had been issued in the Kehancha case be revoked  stated as follows;-

“15. THAT the Grant obtained herein was obtained by way of fraud for the following reasons:-

i)  The Respondent are not sons of the deceased;

ii)   The lawful beneficiaries of the deceased i.e. Christine Nyanswi and Gati Marwa.

6. But in a surprise turn of events, the said LUCAS MWITA MACHERA now denies that the same GATI MARWA, who is the first Applicant in the current application under consideration, has any interest in the deceased's estate. It is important to note that based on the inter alia grounds that the lawful beneficiaries to the deceased had been left out, the grant issued in the Kehancha case was revoked by the Kisii case and it will amount to one eating up his/her cake and still intending to have it for this Court to take the path taken by the said Lucas Mwita Machera in opposition to the application as a serious one. My attention has also been drawn by the letter dated 11/09/2015 by the Chief Bukira North Location addressed to the Deputy Registrar of this Court on who the beneficiaries of the deceased's estate are which include all the parties in this matter.

7. I therefore find that pursuant to Section 66 of the Law of Succession Act, Chapter 160 of the Laws of Kenya as read together with Rule 7(7)(a)(b) and (c) of the Probate and Administration Rules, the Applicant's application is merited.

8. Consequently, the following orders do hereby issue:-

a)   The Grant issued on 20/07/2015 to NYANSWI MWITA HABUBA and LUCAS MWITA MACHERA be and is hereby revoked;

b)   A fresh Grant be issued in the joint names of NYANSWI MWITA HABUBA, LUCAS MWITA MACHERA and GATI MAROA WANGERA;

c)   The Administrators and/or any of them be at liberty to file for the confirmation of the grant within 30 days of issuance of the grant;

d)   Once filed the application for confirmation shall be served upon all the interested parties within 7 days thereof and the matter shall be fixed for directions  within 14 days of  the filing of the application for confirmation of the grant.

e)   Costs of the cause.

Orders accordingly.

DELIVERED, DATED and SIGNED AT MIGORI this  17TH day of  MARCH 2016.

A.C. MRIMA

JUDGE

Delivered in the presence of:

Mr. Nyagesoa instructed by the firm of C.M. Ayienda & Company Advocates for the Applicants.

Mr. Abisai instructed by the firm of Abisai & Company Advocates for the Respondents.

Court Clerk - Mr. Magige