In the Estate of the late Ngunjiri Gatatu (Deceased) - Summons for revocation of grant by the Applicant against the Respondent
The bottom line
#Omission from an estate grant list is generally not grounds for invalidating the grant, but you must have the right legal standing to claim your share.
What this practically means
#Executive summary
#Key legal issues
#Whether omission of the applicant (daughter-in-law) from the petition rendered the grant fraudulent under section 76(b)
No. The respondent complied with section 51(2)(g) and rule 7(1)(e) by listing the deceased's wives and children; spouses of living children of the deceased need not be named, and the applicant did not claim to be a dependant of the deceased
The petition was filed during the lifetime of Anderson Githinji Ngunjiri, who was listed as a child of the deceased. Section 51(2)(g) requires only surviving spouses, children, parents, brothers and sisters, with grandchildren named only where a child is deceased. The prescribed petition form makes no provision for disclosing a child's spouse or occupation details, so the alleged omission was not material.
Whether the applicant had locus to claim her husband's share of the estate
No. She had no grant of representation to her husband's estate, and the proper forum for a distribution protest was the confirmation proceedings under rule 40(6)
The applicant's real grievance was her entitlement to the share due to her husband, not the validity of the grant. Under section 82(a) of the Act, following Troustik Union International Ingrid Ursula Heinz v Jane Mbeyu & Another, only a personal representative may agitate a cause of action vested in a deceased person. No letters had been issued to her, and she should have filed an affidavit of protest at confirmation.
Legal principles established
#- Under section 51(2)(g) of the Law of Succession Act and rule 7(1)(e) of the Probate and Administration Rules, a petitioner need only list the deceased's surviving spouses, children, parents, brothers and sisters; spouses of the deceased's children need not be named where the child is alive and listed
- The power to agitate by suit any cause of action vested in a deceased person at the time of his death vests in his personal representative under section 82(a) of the Law of Succession Act
- A person claiming a share of an estate on behalf of a deceased beneficiary must first obtain a grant of representation to that beneficiary's estate
Court orders
#- 1.The applicant's summons dated 17 December 2014 for revocation or annulment of the certificate of confirmation of grant dated 29 June 2007 is dismissed
- 2.Parties will bear their respective costs
- Jurisdiction invoked
- Section 76 of the Law of Succession Act (power to revoke or annul a grant of representation)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In the Estate of the late Ngunjiri Gatatu (Deceased) - Summons for revocation of grant by the Applicant against the Respondent", Case Analysis (2020). Succession Cause No 73 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/6961/eng@2020-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.