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High CourtAllowedSuccession Cause (number not stated in judgment)

In re Estate of GCB (Deceased) - MJC v EB & CCA

High Court of Kenya
16 January 2020
RNR. Nyakundi
3,575 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Hiding a known beneficiary when applying for an estate grant can lead to the grant being revoked by the High Court.

What this practically means

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Executive summary

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The High Court at Malindi (R. Nyakundi, J.) allowed an objection by MJC seeking revocation of a grant of letters of administration intestate issued to EB and CCA on 25.4.2017 in the estate of GCB, who died intestate on 28.10.2014. The objector claimed she was married to the deceased under Chonyi/Kalenjin Customary Law and that the marriage was dissolved by decree in Kilifi CMCC No. 613 of 2006, with maintenance ordered for their son D.B. The respondent denied the objector was a wife, characterising her as a girlfriend, and challenged paternity. The court framed two issues: whether the objector was a dependant under Section 29 of the Law of Succession Act, and whether the Section 76 test for revocation was satisfied. On the first, the court held that Section 29 expressly covers former wives, and that the divorce decree, corroborated by Section 44 of the Evidence Act (conclusive proof of legal character) and the deceased's insurance proposal naming the objector as wife and D.B as son, established the marriage and paternity conclusively. On the second, the court found the petition and the Chief's letter concealed the objector and her son as beneficiaries, amounting to untrue allegations and concealment of material facts, rendering the grant defective. The court revoked the grant, ordered its recall and surrender, declared the objector and her son dependants, directed fresh grants to EB and MC under Section 66, issued a permanent injunction against dealings in the estate pending confirmation, and ordered costs in the cause.

Key legal issues

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01

Whether the objector and her son are dependants of the deceased under Section 29 of the Law of Succession Act.

Holding

Yes. The objector was a wife under Chonyi/Kalenjin Customary Law, as evidenced by the divorce decree in CMCC No. 613 of 2006, and Section 29 covers former wives; the child's paternity was conclusively determined by the divorce court.

Reasoning

The court relied on the divorce decree which dissolved a Chonyi customary marriage and ordered maintenance for the child, treating it as conclusive proof of the marriage and paternity under Section 44 of the Evidence Act. The deceased's insurance proposal form naming the objector as wife and the child as son corroborated the relationship. Section 29 expressly includes former wives as dependants.

p. 4
02

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

Holding

Yes. The grant was obtained by untrue allegations and concealment of material facts, as the petitioners excluded the objector and her son as beneficiaries.

Reasoning

The respondent's petition and the Chief's letter recognized only the respondent and her children as survivors, excluding the objector and her son despite their established dependency. Following precedents on Section 76, the court found the grant was procured through false representation and lack of consent, rendering it defective and inoperative.

p. 5

Legal principles established

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  • The definition of dependant under Section 29 of the Law of Succession Act extends to former wives, so an ex-wife maintained by the deceased remains a dependant after dissolution of marriage.
  • A final judgment of a competent court under Section 44 of the Evidence Act is conclusive proof of a legal character such as marriage status.
  • A grant obtained by excluding known beneficiaries and concealing material facts is liable to revocation under Section 76 of the Law of Succession Act.

Court orders

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  1. 1.Declaration that the objector MC and her son D.B are dependants to the deceased Estate pursuant to Section 29(a) of the Law of Succession Act.
  2. 2.Revocation of the grant of Letters of Administration for being defective on untrue allegations, lack of consent and concealing of material facts.
  3. 3.The grant issued on 25.4.2017 be recalled and surrendered to the Deputy Registrar High Court, Malindi forthwith.
  4. 4.Declaration in terms of Section 66 of the Law of Succession that the respondent EB and MC be issued with grant of Letters of Administration to the Estate of the Late GB.
  5. 5.Permanent injunction against dealings of the Estate of the deceased GB pending the application and confirmation of grant.
  6. 6.Costs of the litigation be in the cause.
Jurisdiction invoked
Section 76 of the Law of Succession Act (revocation and annulment of grant of letters of administration)

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 GCB (Deceased) - MJC v EB & CCA", Case Analysis (2020). Succession Cause (number not stated in judgment). Source:

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