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Case Brief · caselaw.co.ke
High CourtAllowedSuccession Cause (Summons for Revocation of Grant dated 18 October 2019)· [2020] KEHC 2900 (KLR)

In re Estate of Saul Makwingwi Songwa (Deceased)

High Court of Kenya
14 May 2020
OSOlga Sewe
1,824 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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An estate administrator can lose their authority if they fail to manage the deceased's assets diligently and promptly.

What this practically means

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Executive summary

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The two applicants, sons of the deceased Saul Makwingwi Songwa, brought a Summons for Revocation of Grant under Section 76 of the Law of Succession Act seeking revocation of a Grant of Letters of Administration Intestate issued to the petitioner on 4 February 1994 and confirmed on 13 March 2017. They alleged non-disclosure of the full estate, including Kshs. 3,500,000/= compensation for compulsorily acquired land, omission of some daughters and grandchildren as beneficiaries, unilateral transfer of the entire parcel of over 40 acres into the petitioner's name, sale of commercial plots without reference to beneficiaries, and an eviction suit against a beneficiary. The petitioner, though served, did not respond or attend the hearing, leaving the supporting evidence uncontroverted. The court found the non-disclosure grounds unproved: the confirmation schedule listed 20 beneficiaries including females in near-equal numbers, and no particulars of omitted daughters or undisclosed assets were furnished. However, the court found the petitioner had failed to diligently administer the estate - confirmation was sought only in 2017, 23 years after the grant, contrary to Section 71(1); distribution remained unconcluded contrary to Section 83(g); the entire suit property was transferred to himself; and he sued to evict a beneficiary. The grant was revoked, a fresh grant ordered in the joint names of the petitioner and the two applicants, with directions to present a fresh confirmation application, and the cause transferred to the High Court at Bungoma. Costs were in the cause.

Key legal issues

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01

Whether the grant was obtained defectively or fraudulently by non-disclosure of the estate and beneficiaries

Holding

Not established - applicants furnished no particulars of omitted daughters and did not demonstrate any other assets left out.

Reasoning

The Certificate of Confirmation contained a schedule for 20 beneficiaries including females in numbers almost equal to males, leading the court to conclude daughters were taken into account. The applicants did not furnish particulars of any omitted daughters nor demonstrate other assets, so the grounds under Section 76(a), (b) and (c) were not made out.

p. 2
02

Whether the petitioner failed to diligently administer the estate

Holding

Yes - grant issued 1994, confirmation only in 2017, and distribution unconcluded since, contrary to Sections 71(1) and 83(g).

Reasoning

Section 71(1) requires application for confirmation within six months of the grant, yet the petitioner waited until 2017. Section 83(g) envisages completion of administration within six months of confirmation, yet distribution remained unconcluded. The petitioner also transferred the entire suit property to himself and sued to evict a beneficiary, and failed to account - all uncontroverted.

p. 3

Legal principles established

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  • A grant may be revoked under Section 76(d) where the holder fails to apply for confirmation within one year or to proceed diligently with administration, including failure to produce accounts within the prescribed time.

Court orders

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  1. 1.The Grant of Letters of Administration Intestate issued to the Petitioner, George Wakhungu Songwa, is revoked, and a fresh grant to be issued forthwith in the name of the petitioner jointly with the two applicants
  2. 2.The three administrators to move with speed to present a fresh application for confirmation with a view of concluding the distribution of the deceased's estate
  3. 3.The Succession Cause is transferred to the High Court Registry at Bungoma to expedite its processing to conclusion
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Law of Succession ActSection 76
  • Law of Succession ActSection 71(1)
  • Law of Succession ActSection 83(e) and (g)
  • Probate and Administration RulesRules 44, 45 and 49
Jurisdiction invoked
Section 76 of the Law of Succession Act, Chapter 160 of the Laws of Kenya, and Rules 44, 45 and 49 of the Probate and Administration Rules

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 Saul Makwingwi Songwa (Deceased)", Case Analysis (2020). Succession Cause (Summons for Revocation of Grant dated 18 October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/2900/eng@2020-05-14

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