In re Estate of M’Mbutura M’Twanthuku (Deceased) [2017] KEHC 1917 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 196 OF 2013

IN THE MATTER OF THE ESTATE OF M’MBUTURA M’TWANTHUKU  DECEASED

TABITHA NJIRU M’RINGERA...............PETITIONER/RESPONDENT

VS

KABURU M’MBUTURA..............................APPLICANT/OBJECTOR

RULING

By an application dated 28th January 2014 Kaburu M’Mbutura brought an application under S.76 of Law of Succession Act seeking that grant made on 18th April 2011 to the Petitioner/Administratrix herein be revoked for reasons the proceedings to obtain grant were defective in substance.

That the grant was obtained fraudulently by making a false statement or by the concealment from the court of something material to the case;

That the grant was obtained by means of untrue allegations or was made in ignorance or inadvertently;

That the Petitioner filed the cause secretly and without involvement of the applicant who is the true beneficiary of the deceased estate.

The application was supported by the affidavit of the applicant sworn on 28th January 2014 and supplementary affidavit sworn on 19th August 2014.

In the supporting affidavit the applicant avers that the Administratrix and her son have no interest with L.R. No. Abothuguchi/Mariene/104 which was the only property in the deceased name as at the time of his death.  He averred that the deceased had divided his parcels of land and bequeathed to his dependants.

He claimed the Petitioner forged his signature and even didn’t indicate his true names and identity card. He said the grant issued to Petitioner was erroneous and should be revoked.  The Respondent/Petitioner opposed the application and filed a Replying Affidavit to that effect.  She said that applicants’ supporting affidavit is replete with false information primarily to mislead the court.

She confirmed that she is a daughter-in-law to the deceased and a widow to the late M’Ringera Mbutura son to the deceased she claimed that L.R. No. Abothuguchi/104 was given to her late husband as gift by the grandfather Mutuanthuku Gijaii in 1965 and being her husband was a minor the land was registered in her father in laws name to hold in trust for her husband.  She averred that applicant was not entitled to benefit from the land in question.  He said applicant was bequeathed his share of land from the land in question as per annexture TNM1.

That her late husband registered a caution on the land in question the land in question to protect it and the deceased herein was aware of the caution.

In the supplementary affidavit, the applicant averred that Petitioner had not shown anything to prove her late husband was entitled to the land in question.

He confirmed he and his brothers including Petitioners had not shown anything to prove her late husband was entitled to the land in question.  He confirmed he and his brothers including Petitioners husband were given land measuring 1. 722 Ha.

That the deceased husband was given another one acre of land from Abothuguchi/Katheri/1485 and sold it t one M’Kirera M’Mathiu.

He said it therefore follows that one was also entitled to another one acre of land which he claims from Abothuguchi/Maruene/104 which remained in the deceased person’s name and which the family and claim member was all aware belongs to him  he averred that the registration of caution by the Petitioner husband was inconsequential as he didn’t file or lodge any claim against the deceased.

He said that it was not true that the Petitioners husband was a minor by 1965 because 2 years another land was registered in his name.

He said he was ready to bring witnesses to his claim. From the affidavits filed by the applicant and Petitioner/Respondent it is not possible to determine who is entitled to the parcel of land in question whether exclusively or jointly.

In the circumstances the grant made to Tabitha Njiru M’Ringera on 8th July 2013 is hereby revoked.

Grant is made jointly to the applicant and Petitioner.  Viva voce evidence to be adduced in court to prove either parties claim.  Costs in the cause.  Orders accordingly.

HON. A.ONG’INJO

JUDGE

2. 11. 2017

Before Adwera – Ong’injo J

Penina - C/A

Ms Nyagah Advocate for Petitioner/Respondent.

M/S Gikunda Anampiu Advocate for Applicant – N/A

Court

Ruling Delivered Dated and Signed in Court on 2nd November 2017.

Mention: 16. 9.2017 for directions.

HON. A.ONG’INJO

JUDGE