In re the Estate of M’ikiamba Karitho (Deceased) [2022] KEHC 13793 (KLR)

In re the Estate of M’ikiamba Karitho (Deceased) (Succession Cause 122 of 2004) [2022] KEHC 13793 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13793 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 122 of 2004

TW Cherere, J

October 6, 2022

IN THE MATTER OF THE ESTATE OF M’IKIAMBA KARITHO (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR REVOCATION OF GRANT

Between

Joseph Mwambi M’ikiamba

Petitioner

and

Henry M’mithea M’ikiamba

Applicant

Ruling

1. By summons for revocation dated 01st August, 2022, Henry M’Mithea M’Ikiamba (Applicant) prays for revocation of the rectified certificate of confirmation of grant rectified on 01st November, 2021 be revoked on the grounds that the proceedings to obtain the grant were defective in substance, that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, and that the grant was obtained by means of untrue allegations of facts essential in point of law.

2. The summons is supported by the Applicant’s affidavit filed on 03rd July, 2022 in which he raises the following issues:i.The Petitioner did not disclose all the beneficiaries to the estateii.A stranger, one Charles Mbaabu Karicha was included in the list of beneficiariesiii.Respondent has vowed to subdivide the land so that he gets a bigger portion than the other beneficiaries

3. Application is opposed by the Respondent vide his replying affidavit sworn on 15th September, 2022 and filed on 16th September, 2022. In the response, the following issues have been raised:i.The Applicant was the initial Petitionerii.By an application dated 12th March, 2010, Applicant applied for confirmation and introduced Charles Mbaabu Karicha and Moses Kimathi as beneficiaries and proposed that Land Parcel No. Njai/buurieruri/1585 be distributed equally to the parties herein with the said Charles Mbaabu Karicha getting 0. 5 acres from the Respondent’s shareiii.That the court granted the orders as was prayed by the Applicant

4. The court record demonstrates that letters of administration issued to the Applicant were subsequently revoked and issued to the Respondent. The court additionally revoked the certificate of confirmation of grant dated 23rd September, 2010.

5. Subsequently by an order dated 04th October, 2018, the name of Moses Kimathi and by a rectified certificate of confirmation dated 01st November, 2018, the estate was distributed as follows:i.Njai/buuri/e-ruri/1585Equally to Henry M’Mithea M’Ikiamba, Joseph Mwambi M’Ikiamba and Charles Mbaabu Karichaii.Njai/cia Mwendwa/8360. 75 acres to Henry M’Mithea M’Ikiamba0. 75 acres to Joseph Mwambi M’Ikiambi0. 10 acres to Martha Ncabani0. 10 acers to Beatrice Kanairo0. 10 acres to Peninah Kagendo

Analysis and Determination 6. I have considered the objection and the response thereof in the light of the evidence on record and I will address the issues raised by the Applicant as hereunder.

i. Whether the Petitioner failed to disclose all the beneficiaries to the estate 7. When Applicant filed this cause, he only disclosed the deceased’s sons and concealed the existence of deceased’s three daughters Martha Ncabani, Beatrice Kanairo and Peninah Kagendo. The daughters only featured in this cause after letters of administration issued to the Applicant were revoked and issued to the Respondent.

8. Applicant has not disclosed any other beneficiary that was not provided for and for that reason, his assertion accusing Respondent of non-disclosure must fail.

ii. A stranger, one Charles Mbaabu Karicha was included in the list of beneficiaries 9. As stated at paragraph (3) above, it was the Applicant who by his application for confirmation dated 12th March, 2010 that introduced Charles Mbaabu Karicha to these proceedings. If there is any explanation to be made as to why Charles Mbabu Karicha was introduced to these proceedings, it ought to come from the Applicant and not the Respondent. Consequently, the contention that Charles Mbabu Karicha is a stranger similarly fails.

iii. Respondent has vowed to subdivide the land so that he gets a bigger portion than the other beneficiaries 10. From the affidavit evidence on record, it is apparent that Applicant has not demonstrated that Respondent has either by action or deed vowed to subdivide the estate in any other manner other than the one contained in the rectified certificate of confirmation dated 01st November, 2018.

11. From the foregoing, I find that the assertion by the Applicant is based on no evidence and it is declined.

12. Consequently, Applicant’s summons for revocation dated 01st August, 2022 is without merit and it is dismissed with costs to the Respondent.

DATED AT MERU THIS 06 TH DAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Applicant - N/A Bebo & Mose AdvocatesFor Respondent - Mr. Ondieki for J.O.Ondieki & Co. Advocates