2.The application is premised on the grounds on the face of it and supporting affidavit of Marion Gacheri, the 2nd applicant herein, sworn on even date. She avers that she is a daughter to the deceased; that the 2nd interested party is their mother; and that the 1st interested party and the petitioner are her brothers. She accuses the petitioner of collusion with the interested parties and the chief in order to stealthily file this cause without the knowledge and/or consent of other beneficiaries. She further accuses the petitioner of concealing from the court the existence of other beneficiaries, and proceeding to have the grant confirmed in their absence. It is urged that as a result of the matters aforesaid, the 1st and 3rd applicants, who had been residing on LR No ABOGETA/U-CHURE/533 (hereinafter called the subject property), were disinherited.
3.The applicant alleged that the petitioner caused the suit property to be subdivided into ABOGETA/U-CHURE/3606, 3607, 3608 and 3609 and registered in the names of the petitioner, the 1st interested party, 1st applicant and the 2nd interested party respectively. She avers that the 1st and 3rd applicants are on the verge of being rendered homeless, since the respondents are actively planning to fence of the resultant parcels. She urges the court, in the interest of justice and fairness, to allow the application.
4.The application was opposed by the replying affidavit of Ephantus Muthamia Kithinji, the 1st interested party herein, sworn on March 8, 2022. He wants the application to be dismissed with costs for being taken out in bad faith, informed by malice and otherwise an abuse of the court process. He avers that the deceased had distributed the suit property to his sons before his death, and set aside a portion for his mother to hold in trust for his sisters who would return home if their marriages failed. Following the said distribution, his brothers and himself took possession of their respective portions and have been in occupation since 1980s to date. The 2nd-5th applicants got married and left home, but the 2nd applicant later returned and was given a portion to farm by their mother. When the 1st applicant could not raise school fees for his children, it was agreed in a meeting attended by the 1st applicant, the interested parties and the 1st interested party’s wife that he would take up that mantle in exchange for ½ acre of the 1st applicant’s portion. He terms the allegations of eviction of the 1st and 3rd applicants as being incredulous, because they have lived together as a family in harmony for over 25 years.
5.The applicants swore a supplementary affidavit on April 13, 2022 in support of the application.
6.The applicants submit that the proceedings leading to the confirmation of the grant were defective in substance as the petitioner refused to reveal to the court their existence as dependants. They urge that the deceased died intestate as no evidence was led to show that he had distributed his assets according to Kimeru customary law, and cite re Estate of Kimayo s/o Shibeyi (Deceased) (2020) eKLR. They urge the court to allow the application as the petitioner obtained the grant fraudulently without the knowledge of all the beneficiaries.
Analysis and Determination
8.Having considered the application, the responses thereto and the submissions on record, the issue for determination is whether the grant should be revoked for having been obtained fraudulently by concealment by the petitioners of material fact of the existences of other beneficiaries.
9.Section 76 of the Law of Succession Act sets out the requirements for revocation or annulment of grant as follows:-
10.The point of contention is that whereas the applicants contend that the deceased died intestate, the petitioner and the interested parties are firm that the deceased had distributed the suit property before his death.
11.The applicants cite the concealment of material facts from the court to wit the existence of other beneficiaries of the deceased, as the primary reason behind their quest to have the grant revoked.
12.The Chief of Igoki Location, in his introductory letter dated September 13, 2007, listed Alice Nkabu, Julius Murithi Njau, Ephantus Kithinji and David Mbaabu as the only beneficiaries of the deceased. The official search on record shows that the suit property was registered in the name of the deceased on September 9, 1963.
The Petitioner’s pleadings
13.The petitioner only listed himself, the interested parties and the 1st applicant as the beneficiaries of the estate of the deceased, in the affidavit in support of the petition for letters of administration intestate and the affidavit in support of Summons for Confirmation of the Grant. It appears only the petitioner, the interested parties and the 1st applicant signed the consent to the making of the grant of Letters of Administration intestate and the consent to the mode of distribution of the estate.
14.When the petitioner appeared in court on December 9, 2010 for the hearing of the Summons for Confirmation of Grant, he informed the court that, 'The other beneficiaries are absent. However, we have agreed on distribution. We sub-divided the land in 1985. This is a formality in order to get title to our pieces of land.' The court went ahead to confirm the grant in terms of paragraph 5 of the affidavit in support of the Summons for Confirmation of Grant.
15.The deceased died on February 1, 1978 before the Law of Succession Act had come into force but the Petition for Letters of Administration Intestate was filed on September 9, 2008 and the provisions of the Act relating to administration and distribution of estate of a deceased person apply, by virtue of section 2 (1) and (2) of the Law of Succession Act which provides as follows:
Evidence of gift during lifetime of Deceased
16.The deceased may, in accordance with Meru customary law as alleged, have given his property out to his sons as alleged but to perfect this gift such disposal must be evidenced by evidence of transfer. Being a matter within their special knowledge, the respondents had the burden of proof under section 112 of the Evidence Act as follows:
17.No proof by cogent evidence of Deceased’s gifting of the parcels of land to the respondents during his lifetime was adduced. Although the petitioner and the interested parties maintain that the deceased had distributed the suit property before his death, there is no evidence on record towards that end, and this court must find that the deceased died intestate. Even if it were true that the deceased had distributed the suit property to his sons during his lifetime, why did the petitioner find it difficult to just list all the beneficiaries of the deceased? If that were done, the applicants would have attended court to lend weight to the petitioner’s assertions that the deceased had actually distributed the suit property prior to his death. But that was not done.
18.Significantly, there was no suggestion that under Meru Customary law, there was no provision for the inheritance of female children and indeed, the allegation was that a portion of the estate had been reserved for female children who being married were to return to their father’s land in the event of divorce. There is also no suggestion that the Meru Customary law applicable to the inheritance of the deceased who died before the coming into force of the Law of Succession Act was averse to an application of the provision for dependants similar to that set out in section 26 of the Act, which governed the procedure for litigating succession causes by virtue of section 2 (2) of the Act for all Causes filed after the commencement. How could the applicants file for provision for dependants under section 26 of the Act if there were not aware of the filing of the petition?
Concealment of material facts
19.This court thus finds that, by failing to either disclose the existence of his siblings to the court, or involve them and/or seek their consent in the entire process of obtaining the grant, the petitioner is guilty of concealing something material from the court. The applicants and the petitioner are all children of the deceased and because they ranked in equal priority, it was incumbent upon the petitioner to seek and obtain their consent before he could petition for letters of administration intestate in accordance with Rule 26 of the Probate and Administration Rules 1980, which provide as follows:
20.Consequently, the grant herein having been obtained fraudulently by concealment from the court of something material to the case, is ripe for revocation under section 76 of the Law of Succession Act.
21.Accordingly, for the reasons set out above, the application dated January 14, 2022 is allowed in the following terms:1.The Grant of Letters of Administration Intestate issued to the petitioner on November 4, 2009 and subsequently confirmed on December 9, 2010 is hereby revoked.2.The resultant subdivisions of the suit property being LR No ABOGETA/U-CHURE/3606, 3607, 3608 & 3609 are hereby cancelled and the suit property restored to the name of the deceased.3.Any of the beneficiaries is at liberty severally or jointly with others, subject to the limitation on the numbers of administrators under section 56 (1) (b) of the Law of Succession Act, to apply to be appointed as an administrator.4.There shall be no order as to costs.