Hadija Mohammed Makau, Abdul Mohammed Makau & Fatuma Mohammed Makau v Farida Omar Mohammed & Saida Omar Mohammed [2014] KEHC 4240 (KLR)

No.308/2014

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO.  291  OF 2006

IN THE MATTER OF THE ESTATE OFMOHAMMED MAKAU (DECEASED)

HADIJA MOHAMMED MAKAU……..……………….1ST PETITIONER/RESPONDENT

ABDUL MOHAMMED MAKAU………..…………….2ND PETITIONER/RESPONDENT

FATUMA MOHAMMED MAKAU…………..……….3RD PETITIONER/RESPONDENT

VERSUS

FARIDA OMAR MOHAMMED………..……………….1st RESPONDENT/APPLICANT

SAIDA OMAR MOHAMMED…..................................2ND RESPONDENT/APPLICANT

RULING

The application dated 11th August 2008 is brought pursuant to Section 76 of the Lawof Succession Act, and Rule 44(1) of the Probate and Administration Rules.

In the application the applicant seeks an order revoking/annulling the grant obtained by the petitioners/respondents on the ground that: –

It was obtained fraudulently, by the petitioners who made a false statement that Plot Machakos Town/ Block 11/132 Number 909/614 was part of the estate of the deceased and that the applicants were not entitled to it;

The petitioners obtained the grant without notice to all persons entitled in the same degree or in priority to them  as required by Rule 24 of the  Probate and administration Rules;

The petitioners failed to disclose to the court that the estate of the deceased was inherited by his widow, one Halima Mohamed (now deceased) and later distributed by the said widow.

In an affidavit in support of the application it is deponed that the applicants were wives to Mohammed Omar Makau, (now deceased) a son to the deceased.  After the deceased passed, on Halima Mohammed, his wife inherited his estate. Halimadistributed the estate; Machakos Town Block 11/132 formerly Machakos Number 909/614 was given to Mohammed Omar and Abdul Mohammed Makau, the 2nd Petitioner, which they have renovated as it was dilapidated.

In a response thereto the respondents denying having obtained the grant fraudulently stated that they invited the applicants to discuss the mode of distribution but they declined to sign agreements.

They stated that the deceased’s estate was never inherited.  The applicant’s husband had attempted to deprive them of the estate but never succeeded.  Although the deceased was survived by three (3) sons and four (4) daughters, the applicants have been collecting rent from the estate  of the deceased which comprises of only one property, Machakos Town Block 11/132 also referred to as L.R. No. 909/614.

Further, they averred that the property was not distributed by their deceased mother and the proposed mode of distribution by the applicant was improper and unjust.

The deceased herein died in 1969 prior to the Law of Succession coming into force.  Having left no will, the law applicable would be the Kamba customary law or the Islamic customary law.

It is not in dispute that the deceased was survived by three (3) sons and four (4) daughters.   The husband to the applicants, one of his sons died in the year 2001. It is evident that at the time of petitioning for Letters of Administration Intestate, although the name of Omar Mohammed Makau was included as a beneficiary, he was dead and those who survived him, the applicants herein were not notified of the intention to obtain Letters of Administration.  This fact was concealed from them.  It has also been established that there were proceedings at the Kadhi’s Court in respect of Plot No. 50 situated at Machakos said to have been an asset owned by the deceased.  The case was not concluded.

This perse would be evidence that the deceased may have left more properties that were not disclosed by the petitioners.  This would call for revocation of the grant issued.

Accordingly, I do revoke the Temporary Grant of Letters of Administration issued herein.  This being a succession matter, each party shall bear their own costs.

DATED, SIGNEDand DELIVERED at MACHAKOS this 12THday of JUNE 2014.

L.N. MUTENDE

JUDGE