Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtAllowedNot stated in the judgment (summons dated 26th January 2019, brought under Section 76 and Rule 44(1) of Cap 160)· [2019] KEHC 5711 (KLR)

In re Estate of Razario Muriuki M'Thuranira (Deceased) - Summons for Revocation of Grant by Florence Kagutu Muriuki

High Court of Kenya
17 July 2019
1,656 words in judgment
View original judgment Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Selling estate property before the court confirms the grant is illegal and can lead to the entire transaction being voided.

What this practically means

#

Executive summary

#
The High Court (F. Gikonyo J) determined a summons dated 26th January 2019 under Section 76 and Rule 44(1) of Cap 160 seeking revocation or annulment of an amended confirmed grant of letters of administration in the estate of Razario Muriuki M'Thuranira. The applicant, Florence Kagutu Muriuki, a joint administrator, alleged the grant was obtained fraudulently and included strangers - purchasers Julius Mbaabu Mukangu and Gilbert Kirimi Mugambi - as beneficiaries, and that a forgery claim over estate documents remained unresolved because the DCIO only examined the mutation form. Michael Kiugu M'Thuranira opposed, arguing the application replicated a 2014 application already determined, that the DCIO had vindicated the respondents, and that the confirmed grant had never been appealed. The court framed two issues: whether to revoke the amended confirmed grant, and the place of the purchasers' interests. It traced the history: grant confirmed on 9th December 2008 distributing L.P Abogeta/L-Chure/448 to four persons including the two purchasers; a 2014 rectification application in which Makau J held the purchasers were strangers to the estate; and a ruling of 16th August 2016/2018 revoking the grant to Razaro upon his death and appointing two administrators. The court held that pre-confirmation sale and transfer of estate property is prohibited by section 83 of the Law of Succession Act and constitutes intermeddling, rendering the transactions unlawful, null and void, punishable under section 45, and unprotected by Article 40(6) of the Constitution. The grant was thus tinctured with fraud and revoked. The court also held that redistribution cannot be achieved through the summary rectification procedure. It revoked all previous grants, issued a fresh grant to the two administrators, and confirmed distribution among seven named beneficiaries. No costs order was made.

Key legal issues

#
01

Whether the amended and confirmed grant should be revoked under Section 76 of the Law of Succession Act

Holding

The grant was revoked because it was tinctured with fraud and illegalities, including the inclusion of purchasers as beneficiaries and pre-confirmation sale transactions.

Reasoning

The court found that purchasers Julius Mbaabu Mukangu and Gilbert Kirimi Mugambi were strangers to the estate, having purchased from the administrator before confirmation. Such pre-confirmation sales amount to intermeddling under section 83, are null and void, may attract criminal sanction under section 45, and enjoy no constitutional property protection under Article 40(6). A grant so tainted is a perfect candidate for revocation under section 76.

p. 2
02

Whether rectification of grant was the appropriate remedy

Holding

Rectification was not tenable; redistribution of the estate is a fundamental function of the court that cannot be handled through the summary rectification procedure.

Reasoning

The court distinguished the earlier application dated 10th December 2014, which sought rectification and inhibition, from the present revocation application. It held that redistribution cannot be achieved through rectification, which is confined to small errors in description of property or names, and that the confusion in the proceedings arose from the mistaken belief that the distribution in the revoked grant survived.

p. 2
03

The place of the purchasers' interests in the succession proceedings

Holding

The purchasers are strangers to the estate; their remedy lies in separate proceedings against the estate of Razaro, not in the succession cause.

Reasoning

Following Makau J's earlier ruling, the purchasers are neither dependants nor creditors of the deceased. The DCIO report showing Razaro's fingerprint on the mutation form settles the question of his signature but would only profit proceedings by the purchasers against the estate of Razaro in another forum. Their pre-confirmation transactions were unlawful and void.

p. 2

Legal principles established

#
  • Redistribution of an estate is a fundamental function of the court and cannot be dealt with under the summary procedure for rectification of grants.
  • Sale and transfer of estate property before confirmation of a grant is prohibited and constitutes intermeddling, rendering the transactions unlawful, null and void.
  • Property rights under Article 40(6) of the Constitution do not extend to unlawfully acquired property.

Court orders

#
  1. 1.All previous grants including the amended grants dated 18th July 2018 are revoked
  2. 2.A fresh grant of letters of administration is made to Michael Kiungu M'Thuranira and Florence Kagutu Muriuki
  3. 3.The fresh grant is confirmed and the estate L.P Abogeta/L-Chure/448 distributed: Taracila Maiti M'Thuranira 1.31 acres; Florence Kagutu Muriuki 1/2 acre; Michael Riungu M'Thuranira 1/2 acre; Phillip Kithaka M'Thuranira 1/2 acre; Domisiano Kinoti (deceased, represented by daughter Nkirote Kinoti) 1/2 acre; Doline Kagwiria 1/2 acre; Margaret Kanyamu 1/2 acre

Authorities

#

Legislation

  • Law of Succession Act (Cap 160, Laws of Kenya)Section 76
  • Law of Succession Act (Cap 160, Laws of Kenya)Rule 44(1)
  • Law of Succession Act (Cap 160, Laws of Kenya)Section 76(e)
  • Law of Succession Act (Cap 160, Laws of Kenya)Section 83
  • Law of Succession Act (Cap 160, Laws of Kenya)Section 45
  • Constitution of KenyaArticle 40(6)
Jurisdiction invoked
Section 76 and Rule 44(1) of Cap 160 (Law of Succession Act) - probate and administration jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "In re Estate of Razario Muriuki M'Thuranira (Deceased) - Summons for Revocation of Grant by Florence Kagutu Muriuki", Case Analysis (2019). Not stated in the judgment (summons dated 26th January 2019, brought under Section 76 and Rule 44(1) of Cap 160). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.