In re Estate of Thuo Kaara (Deceased) [2017] KEHC 2162 (KLR)

Full Case Text

IN THE HIGH COURT OF KENYA AT MURANG’A

SUCCESSION CAUSE NO 1301 OF 2013

IN THE MATTER OF THE ESTATE OF THUO KAARA DECEASED

NELSON MWANGI THUO………………….……….……..……………...APPLICANT

VERSUS

MUTHEE HARRISON KAARA....……….…1ST RESPONDENT/ADMINISTRATOR

MICHAEL NDABIA MWANGI……….....………..………………..2ND RESPONDENT

R U L I N G

1. This ruling is in respect to the summons dated 16/12/2013 filed by the Applicant Nelson Mwangi Thuo for revocation or annulment of the grant issued and confirmed in Murang’a SRM Succession Cause No. 227 of 1989. The grant was issued to the 1st Respondent Muthee Harrison Kaara. By the certificate of confirmation, the Deceased’s estate comprising the parcel of land L.R. LOC 13/GAKOE/566 was inherited jointly by the 1st Respondent and Michael Ndabia Mwangi(2nd Respondent) in equal shares, with one Lilian Muthoni Mwangi (apparently their mother) having a life interest therein.

2. The application is brought upon the main grounds that the Respondents who were the main beneficiaries in the certificate of confirmation, falsely presented themselves to court as the Deceased’s sons (whereas they were not), and that this completely disinherited the Applicant (who was indeed a son of the Deceased and the proper beneficiary of his estate).

3. I have read the supporting and replying affidavits. I have also read the written submissions filed for the parties by their advocates. There is no dispute at all that the Applicant was the Deceased’s son, and that he was completely disinherited in the confirmed grant now sought to be revoked. What is in dispute is the Respondents’ assertion that they were also the Deceased’s sons. The Applicant has stated categorically that the Respondents’ father, whom he has named, was a brother to the Deceased, and that therefore the Respondents were the Deceased’s nephews, not his sons. In their replying affidavit the Respondents do not categorically deny that the person named by the Applicant was their father, or that he was a brother of the Deceased. What they do in the replying affidavit is just to state, without more, that they were also sons of the Deceased.

4. The court record shows that on 08/06/2015 both learned counsels for the parties addressed the court. The Applicant’s counsel stated categorically that the Applicant is a son of the Deceased and that the Respondents were nephews of the Deceased. The Respondents’ learned counsel merely pointed out that he had filed a replying affidavit and that he would take further instructions. He sought a date for mention of the case.

5. On 05/10/2015 the learned counsels for the parties agreed that there was no issue of fact to be tried by oral evidence, and that the summons for revocation should be heard by way of submissions upon the affidavits on record.

6. Even if the issue whether or not the Respondents were the Deceased’s sons or nephews were still at large, the main fact here, which is not in dispute, is that the Applicant was the Deceased’s son, and that he was completely disinherited. It matters not that he discovered the disinheritance after twenty-something years and came to court. If it should turn out that the Respondents had no right at all to inherit the Deceased’s estate, it really matters not how long it takes to dislodge them from the illegal inheritance. In any event, the statute of limitations does not appear to apply to succession matters.

7. In the result, I will allow the summons dated 16/12/2013 and make the following orders and directions –

(a) The grant of letters of administration intestate to the estate of the Deceased herein made and issued on 08/02/1990 to Muthee Harrison Kaara is hereby revoked.

(b) The certificate of confirmation of grant dated 23/08/1990 is hereby cancelled, and any transmissions made upon strength thereof are hereby also cancelled. The property L.R. LOC. 13/GAKOE/566 shall forthwith revert back unto the name of the Deceased Francis Thuo Kaara.

(d) The lower court record, Murang’a SRM Succession Cause No 227 of 1989,shall be forthwith returned to the lower court with a copy of this ruling. There, a grant of letters of administration intestate shall be issued to Nelson Mwangi Thuo as per paragraph (c) above.

(e) The new Administrator shall then file a summons for confirmation of grant (in the lower court) which he shall serve upon the Respondents herein (who shall be at liberty to file affidavits of protest).

(f) Thereafter the lower court shall proceed with the matter to its logical conclusion.

(g) The Applicant shall have the costs of these present proceedings.

Those will be the orders of the court.

DATED AND SIGNED THIS 2ND DAY OF NOVEMBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 3RD DAY OF NOVEMBER 2017