In re Estate of Geoffrey Kiricho Mbogori (Deceased) [2020] KEHC 8830 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

SUCCESSION CAUSE NO. 49 OF 2016

(FORMERLY MERU H.C SUCC. CAUSE NO. 191 OF 1996)

IN THE MATTER OF THE ESTATE OF GEOFFREY KIRICHO MBOGORI (DECEASED)

JANE KAGIGE GEOFFREY.................................................................1ST PETITIONER

KARIMI KIRICHO...............................................................................2ND PETITIONER

VERSUS

WALLACE IRERI NJERU.........................................................INTERESTED PARTY

BRAZON MUNENE KIRICHO...........................................................1ST OBJECTOR

CHARITY KAIMURI GEOFFREY......................................................2ND OBJECTOR

R U L I N G

1.  Before this court is Summons for Revocation of Grant dated 30th September 2019 taken by Brazon Munene, the  Applicant  herein seeking for revocation of  a grant made to Jane Kagige Geoffrey and Beatrice Karimi Kiricho pursuant of a judgment of this court dated 19th December 2018.

2.  The Applicant has sought for revocation of the said grant on the following grounds namely:-

a)  That the grant has become inoperative because of demise of one of administrators and the remaining one is very old and weak to complete the process.

b)  The other ground is that the applicant should be appointed as an administrator.

3.  In his Supporting Affidavit sworn on 30th September 2019, the Applicant has reiterated the first ground and exhibited a death certificate serial No.0351614 to demonstrate that Kirimi Kiricho is deceased having died on 23rd February   2019 at Komu Sub-location, Chogoria.

4.  The Applicant has also averred that the 1st Administratrix is old and sickly  and on that basis he is asking this court to revoke the grant and issue a fresh one solely to him or jointly with another beneficiary.

5.  The Respondent (Jane Kagige Geoffrey) has opposed this application vide        Replying Affidavit sworn on 5th October 2019 .  According to her this court is now functus officio after rendering itself vide judgment delivered on 19th December 2018.  She has further averred that there is an appeal to Court of Appeal preferred by Wallace Ireri which appeal is pending.

6.  The Respondent has contended that the only reasonable step under the    circumstances is to ask for substitution of the deceased administratrix and not revocation of grant.  She contends that the application is unmerited as iit does not  satisfy the grounds set out under Section 76 of Law of Succession      Act.

7.   This is an application for Summons for Revocation of a Grant issued on 19th  December 2018 through a judgment delivered on the same day.  The  Applicant has invoked Section 76 of  Law of Succession Act Cap 160   which outlines grounds for revocation of a grant as follows:-

a)  When the proceedings to obtain the grant are defective in substance.

b)  When a grant has been obtained fraudulently through concealment of material facts.

c)  When a grant has been obtained by means of untrue allegation even if the allegations were  made ignorantly or inadvertently

d)  When the person whom the grant was made has failed after due notice to apply for confirmation or proceed diligently with the administration of estate.

e)  When a grant is rendered useless or inoperative through subsequent circumstances.

8.  The Applicant has apparently invoked the last ground that is the fact that the   demise of one of the administratrixes has rendered the administration of the estate herein inoperative.  While it is not contested that the 2nd  administratrix Karimi Kiricho is now deceased, the appropriate remedy in   such instances is to move the court for substitution if the remaining administratrix is impaired or afflicted by any disability.

9.  The Applicant claims that the remaining administratrix Jane Kagige Geoffrey is old which is true because I  have taken judicial notice of that fact but to say she is unable to carry on with the administration of the estate  herein in my view is not well founded because she has been actively     participating in the proceedings herein including this application and has not exhibited any disability despite her apparent old age.  This court therefore  finds that the Summons for Revocation of Grant dated 30th September 2019 is unmerited and the same is disallowed.  I further invoke my powers under Section 47 of the Law of Succession Act  for purposes of expediency by    directing that Jane Kagige Geoffrey to be the sole administratrix and proceed to administer the estate of the deceased herein.  In order to bring this  matter to an end I direct the Deputy Registrar to execute document on  behalf of any party who may be reluctant to execute requisite documents to facilitate transmission of the estate to the respective beneficiaries as determined by this court in the  certificate of confirmation.  I direct Land Registrar to dispense with production of PINS/IDS of those beneficiaries who may be reluctant to cooperate and I also direct the  OCS Chuka to  provide security to the District Surveyor to carry out  subdivisions of the estate as per the certificate of confirmation issued herein.

I shall make no order as to costs in this application for now but parties must    pay for surveyor's fees.

Dated, signed and delivered at Chuka this 28th day of January 2020.

R.K. LIMO

JUDGE

28/1/2020

Ruling signed, dated and delivered in open court in the presence of Kariuki   for Interested Party, Jane Kagige , Respondent, Applicant in person and 2nd Objector in person.

R.K. LIMO

JUDGE

28/1/2020