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High CourtAllowedSuccession Cause (Kerugoya) - revocation of grant summons

In re Estate of Kamuthiru Ngare alias Kamuthuru Ngari (Deceased)

High Court of Kenya
14 February 2019
1,776 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Hiding family members or using fraud to secure an inheritance grant can lead to the court revoking that grant.

What this practically means

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Executive summary

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The deceased, Kamuthiru Ngare alias Kamuthuru Ngari, died intestate in 1964 leaving no children with his widow Wangu Kamuthiru. Letters of administration intestate were issued to Joseph W. Ngari Matukire and Eunice Wangari Wangu on 9/9/10 and confirmed on 24/5/2011. Four applicants, claiming to be children of the deceased, filed summons for revocation of grant on grounds that the proceedings were defective in substance, the grant was obtained fraudulently by false statement and concealment of material facts, and by untrue allegations of fact. The respondent opposed, contending the deceased was his childless uncle, that he was the next surviving relative, that the estate was published in the Kenya Gazette without objection, and denying fraud. The matter proceeded by viva voce evidence. The court found as undisputed that the deceased had no children with his wife, that the widow accepted the 1st respondent to live on the estate, and that the applicants lived on the land with their mother. Applying section 29 of the Law of Succession Act, the court held the applicants were dependants as grandchildren through Eunice Wangari Wangu, who had been adopted by the widow, while the 2nd respondent, a nephew never maintained by the deceased, was not a dependant. Under section 76, the court found the proceedings defective in substance because dependants were omitted, that material facts were concealed (the 1st respondent's mental illness and her children, and the clan's recommendation on administrators), and that the grant was fraudulently obtained through misrepresentation and self-award of a larger portion than the clan recommended. The court allowed the revocation, declared the applicants the rightful beneficiaries of Land Parcel No. Mwerua/Kagioini/448, directed them to apply for letters of administration, and awarded them costs.

Key legal issues

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01

Whether the applicants are dependants of the deceased under section 29 of the Law of Succession Act

Holding

The applicants are dependants as grandchildren of the deceased through Eunice Wangari Wangu, who was adopted by the deceased's widow; the 2nd respondent is a nephew who was never maintained by the deceased and is not a dependant.

Reasoning

The court relied on the undisputed facts that the deceased had no children with his wife, that the widow accepted the 1st respondent to live on the estate, and the clan meeting minutes finding the 1st respondent was legally adopted by the widow. The applicants lived on the land continuously. The 2nd respondent admitted being a nephew, never lived on the estate, and inherited land from his own father, so he had no claim over his uncle's estate.

p. 2
02

Whether the grant should be revoked under section 76 of the Law of Succession Act

Holding

The grant is revoked because the proceedings were defective in substance (dependants omitted), material facts were concealed (the 1st respondent's mental illness and her children; the clan's recommendation), and the grant was fraudulently obtained through misrepresentation and self-award of a bigger portion than the clan recommended.

Reasoning

The court found the 2nd respondent presented himself as the only beneficiary, misled the 1st respondent that they were going to rectify the title, concealed the clan's deliberations recommending himself and Boniface Kinyua Kamuthiru as administrators, failed to disclose his other siblings, and could not produce the application for confirmation of grant, making it unclear how the grant was obtained.

p. 3

Legal principles established

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  • It is sufficient for a party seeking revocation to prove any one of the grounds under section 76 of the Law of Succession Act; proof of all grounds is not required.

Court orders

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  1. 1.The grant which was confirmed on 13/5/2011 be revoked
  2. 2.The applicants are the rightful beneficiaries of the estate of the deceased comprised in Land Parcel No. Mwerua/Kagioini/448
  3. 3.The applicants who are the rightful dependants of the deceased shall proceed to apply for Letters of Administration
  4. 4.Costs awarded to the applicants
Jurisdiction invoked
Section 76 of the Law of Succession Act (Cap 160) - revocation of grant of representation

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Kamuthiru Ngare alias Kamuthuru Ngari (Deceased)", Case Analysis (2019). Succession Cause (Kerugoya) - revocation of grant summons. Source: 

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