Margaret Nzembi Mulwa v Bonface Kithuki Nguu

fraudulently in the name of Teresia Munyamai and ordered that the land do revert to the original owner Kasyoka Nguu. The elders decision was confirmed by the High Court sitting at Machakos on the 13th October, 1995 and no Appeal was preferred. In order for the land known as Kyangithya/Kaveta/508 to be shared as directed by the Court the grant should be revoked and a fresh grant be issued in the names of Boniface Kithiia Nguu and Margaret Nzembi Mulwa. 6. The application was served upon the Respondent per the affidavit of service dated 30th March, 2014 filed on the 6th May, 2014 but no reply was made. All along he would be notified of the hearing dates but he refused and/or neglected to appear. Directions in the matter were given on 22nd September, 2015 whereby the matter was disposed off by way of written submissions. 7. In his submissions, Mr. Kilonzi, learned Counsel for the Applicant stated that the Respondent ignored the Court order and distributed the land belonging to their grandmother to his siblings leaving out his Cousins from the first home made up of the Applicant’s husband, Mutinda Maithya, Bernard Maithya, Kavisa Maithya and now the other generation including Alex Maithya, Judy Kavengi, Regina Mueni and John Nguu. 8. I have taken into consideration the averment in the affidavit, submissions by Counsel for the Applicant and the evidence in Machakos High Court Civil Case No. 160 of 1987. 9. A grant of representation may be revoked if the threshold set by Section 76 the Law of Succession Act is met. The alluded to provision of law provides thus: “A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion— (a) that the proceedings to obtain the grant were defective in substance; (b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; (c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently; (d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either— (i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or (ii) to proceed diligently with the administration of the estate; or (iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or (e) that the grant has become useless and inoperative through subsequent circumstances.” The Deceased herein died on the 4th July, 1984, Mutinda Maithya petitioned for Letters of Administration Intestate in respect of her Estate in his capacity as his nephew. A list of persons who survived her was given as: • Wanja Kivindyo – Daughter • Ng’elu Kithome – Daughter

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• • • • • Kithia Nguu – Son Kiema Nguu – Son Mutinda Maithya – Nephew Bernard Maithya – Nephew Margaret Joseph – Niece The only asset that was indicated as having been left by the Deceased was: Land Parcel No. Changithya/Kaveta/508. Consequently a grant of Letters of Administration Intestate were issued to Boniface Kithiia Nguu on 28th July, 1987 and confirmed on the 24th day of May, 1988. Land Parcel No. Kyangwithya/Kaveta/508 was to be shared and registered in the names of Boniface Kithiia Nguu 0.6 Hectares and Kyeni Nguu 0.6 Hactares. 10. On the 14th October, 1987, Joseph Mulwa Maithya the late husband of the Applicant and Kasyoka Nguu filed a suit against the Respondent and Administrator of the Estate of Teresia Munyamai Nguu. They averred that Kyangithya/Kaveta/508 was registered in the name of Nguu Isika in 1972 and after his death it passed to Kasyoka Nguu. The land was subdivided into three on the ground and given to the father of Joseph Mulwa, Munyamai Nguu the mother of the Respondent while Kasyoka Nguu retained the third portion. In 1981 the Deceased tricked her mother into signing a document believing she was to transfer the portion that belonged to the Deceased to her. As a result of the fraud the whole land ended up on the name of the Deceased. 11. The dispute was referred to Elders for arbitration. The Elders award was adopted and confirmed as the Judgment of the Court. It was ruled that the land reverts to the original owner (Kasyoka Nguu) so that she could subdivide it amongst her grandchildren. The judgment was dated 8th July, 1990. The Respondent disregarded the Court process. He did not appear to defend the Cause. 12. From the evidence adduced before elders, on the ground all grandchildren of the original owner of the land that was indicated as belonging to the Deceased herein have settled on the parcel of land. 13. From the foregoing, when the Respondent applied for confirmation of the grant in 1988 he was aware there was a matter pending in Court where he had been sued in his capacity and the Administrator of the Estate of the Deceased. 14. Without any explanation from the Respondent. It is apparent that the grant was obtained following concealment of some material facts regarding the case from the Court. Had the Court been aware of the true state of the case then other parties would have been included in the matter. 15. In the result I make orders as following: i. The grant issued herein and confirmed be and is hereby revoked. ii. Title deeds, if issued shall stand cancelled. iii. Parties herein shall file a fresh application for grant of Letters of Administration in the Lower Court that is seized of jurisdiction to hear and determine the matter. iv. Costs to the Applicant. 16. It is so ordered. Dated, Signed and Delivered at Kitui this 23rd day of August, 2017. L. N. MUTENDE

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JUDGE

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