In re Estate of Mugambi Muketha (Deceased) [2018] KEHC 3977 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

SUCCESSION CAUSE NO. 672 OF 2015

(FORMERLY SPM SUCCESSION  CAUSE NO. 79 OF 2015)

IN THE MATTER OF THE ESTATE OF THE LATE MUGAMBI MUKETHA -(DECEASED)

JANET GAAJI MUCHUNKU.....................PETITIONER

VERSUS

LEAH MUKWANJIRU MWIANDI..........RESPONDENT

R U L I N G

1. This cause relates to the estate of the late Mugambi Muketha (deceased) who  passed on sometime in 1960s domiciled in Karongoni Sub-Location, Karingani.  The estate in this cause comprises that property known as  Mwimbi/Kiraro/261 measuring (0. 25 ha).  The deceased died living behind two children Janet Gaaji Muchunku (deceased) and Mbae (deceased).  Janet  Gaaji Muchunku petitioned for Letters of Administration initially but Leah  Mukwanjiru Mwiandi cross petitioned for the same objecting to Janet Gaaji's  application on the ground that Mugambi Muketha left no children and since  she was married to Mwiandi Wa Rwiro (deceased) brother to Mugambi  Muketha she should be granted letters of administration  in respect to his  estate.

2. This court entertained the objection by Leah Mukwanjiru Mwiandi but  before the ruling the Petitioner (Janet Gaaji) passed on and the court ruled  that  any representative from Janet Gaaji should apply for substitution and  declined to appoint Leah Mukwanjiru Mwiandi as the administratrix.    However no person turned up on behalf of the late Janet Gaaji with the view  to substituting her and this court was left with no other option but to let Leah  Mukwanjiru Mwiandi to be the administratrix on 4th May, 2016.

3. Upon confirmation of grant on 12th October, 2017 David Kariuki  Muchunku, came up with Summons for Revocation of Grant dated 17th  October, 2017 stating that he was a son to Janet Gaaji (deceased) who was a  daughter of the deceased herein.  He has accused the Respondent (Leah  Mukwanjiru Mwiandi)  for concealing from this court material facts.  This is  the application that is the subject of this ruling.

4. The Respondent has opposed this application through a Replying Affidavit  sworn on 14th November, 2017. In the said affidavit the Respondent has  dismissed the applicant as an imposter and fraudster who has no relations  with the deceased.  According to her the applicant is not a dependant and has  deposed that she is the only person close to the deceased herein by virtue of  having been married to his brother.

5. In his evidence in court the applicant told this court  that her late mother  Janet Gaaji was married to Patrick Muchunku who was his father.  The  witnesses called to testify Kanampiu Runkungi (PW2), Bundi Karigicha  (PW3) and William Kagondu (PW4) all testified and what this court  deduced from their evidence is that the late Mugambi Muketha (deceased  was married to one Ciakangori and were blessed with two children Janet  Gaaji (now deceased) and Mbae M'Mugambi (deceased reported to have  died at young age).

6. I have considered this application and the evidence tendered and the only  issue for the determination is whether or not there was material concealment  of facts by the respondent and/or whether the grant was issued to her due to  an inadvertent mistake.

7. There is no dispute that prior to her demise Janet Gaaji had put up a spirited  fight to inherit the estate of the deceased claiming that she was the only  surviving child to the deceased.  Though the Respondent herein strenuously  objected to her claim and applied to be  considered as the sole heir, this court  through a ruling dated  6th October, 2016 declined and gave the personal  representative of the late Janet Gaaji Muchunku to apply for substitution.   Failure by the applicant herein to move this court on time led to the  Respondent being granted a grant of Letters of Administration on 8th May,  2017.  Although, the applicant has not given the explanation for the delay in  moving this court, I find that the issues raised in the application and the oral evidence tendered can only be addressed adequately if the grant issued in  this cause is revoked.  The same is revoked under Section 76 of Law of  Succession Act and the confirmation of the same on 12th October, 2017 is  hereby reversed.  I shall exercise my discretion under Section 66 of Law of  Succession Act and appoint Mukwanjiru  Mwiandi the administratrix of the  estate of the deceased herein.

I shall grant the applicant  herein limited period within which to move this  court for substitution upon compliance with the law.

I make no order as to costs at this stage.  The applicant is granted 21 days to  move this court and default the Respondent or any other party is at liberty to  apply.

Dated, signed and delivered at Chuka this 3rd  day of October, 2018.

R. K. LIMO

JUDGE

3/10/2018

Ruling signed, dated and delivered in the open court in presence of Petitioner/Respondent in person and Applicant in person.

R.K. LIMO

JUDGE

3/10/2018