In re Estate of the Late M’mwereria Tuangure (Deceased) [2018] KEHC 3609 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT MERU

SUCCESSION CAUSE NO. 277 OF 2011

IN THE MATTER OF THE ESTATE OF THE LATE M’MWERERIA TUANGURE  - DECEASED

TITUS KINOTI MARETE........................APPLICANT

VS

PETER KITHEKA KAREA...................PETITIONER

RULING

The applicant herein by application dated 25th May 2011 sought that certificate of confirmation made to petitioner in Maua SPM Succession cause NO. 33 OF 2010 be revoked and/or annulled.  This is based on the fact that he is grandson to the deceased.  Further, he took care of his uncle, Joseph Thiine, who was a son of the deceased and who regarded him as his son and is living in his property.

It was also alleged that there are many beneficiaries who were left out in the estate.  One of deceased’s daughters; Esther Mpindi M’Munyuri denied renouncing her interest in the estate.

In his response, the Petitioner claimed that the family had agreed for him to be the administrator at the deceased’s estate, that the Applicant had no locus standi in this case and that the application dated 25th May 2011 is irregular.

I have looked at the application dated 25th May 2011 and all the other filed documents herein.  The issue for determination before this court is to revoke the grant.

So when can the court revoke a grant? The answer to this is stipulated under section 79 of the law of succession Act and includes instances where:-

a)  The proceedings to obtain the grant were defective in substances;

b)  The grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the cause.

The allegations herein are that this suit was fraudulently filed.  That the daughters of the deceased did not renounce their interests in the estate and that their brother, who is deceased was not included as a beneficiary.  It was also highlighted that the chief’s letter of introduction was obtained from a different location from where the deceased resided.

When comes to the children at the deceased, the law is very clear that they are regarded as dependants and beneficiaries under section 29 of cap 160.  Further Section 38 of the LSA states that when an intestate has left a surviving child but no spouse, the net intestate shall devolve upon the surviving children equally.  This includes both male and female children as was held in the case of Estate of Solomon Ngatia Kariuki 2008[EKLR].  As such it is established that Esther Mpindi ought to have been included as a beneficiary.

Further, the Applicant status that he is a grandson to the deceased and thus should inherit in his estate.  The Petitioner also bequeaths himself a share in the estate.  This is fraudulent in law ab initio as Section 38 of the LSA gives a list of priority according to consanguinity that is, children are priority in inheritance.

Therefore the petitioner and the Applicant should inherit the deceased person’s estate through their fathers who are direct beneficiaries of that estate.

In consequence this grant, granted on 12th May 2011 is revoked and Fresh grants are to be made by any 2 surviving children of the deceased including a surviving daughter within 30 days.  Mention to confirm filing of application of Letters of grants of administration intestate.

It is so ordered.

HON. A.ONG’INJO

JUDGE

RULING DELIVERED, SIGNED AND DATED THIS 2ND DAY OF AUGUST 2018

IN THE PRESENCE OF:

C/A:- Penina

Petitioner: -MS Njenga holding brief for Rimita for Applicant

Mr Ogoti Advocate for Petitioner.  M. 20. 9.2018 for beneficiaries to agree on 2 administrators.

All beneficiaries to attend court.

HON. A.ONG’INJO

JUDGE