|Succession Cause 1723 of 2009
|DAVID MAINA MWANGI, JOHN KARANJA MWANGI & NANCY NJERI NDUNGU v PERIS WANJIKU KAMARA
|08 Apr 2011
|High Court at Nairobi (Milimani Law Courts)
|Luka Kiprotich Kimaru
|DAVID MAINA MWANGI & 2 others v PERIS WANJIKU KAMARA  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
SUCCESSION CAUSE NO.1723 OF 2009
J U D G M E N T
On 31st July 2009, the applicants filed summons pursuant to Section 76 of the Law of Succession Act seeking to have the said grant issued to the respondent revoked or annulled. The applicants claimed that the respondent had obtained the said letters of administration by fraudulently making false statements and concealing from the court facts which were material to the case. In particular, the applicants’ stated that the respondent failed to disclose to the court that the applicants were the grandchildren of the deceased and therefore entitled to inherit the estate of the deceased. They claimed that the respondent was a total stranger to the said estate of the deceased and therefore not entitled to claim any share in the estate of the deceased. The application is supported by the annexed affidavit of David Maina Mwangi. In the said affidavit, he deponed that the applicants were the children of one Beth Nyabena Mwangi who was the daughter of the deceased. The said Beth Nyabena Mwangi was married to one Mwangi Karugo. Mwangi Karugo, also deceased, is the father of the applicants. The said Mwangi Karugo had filed summons for revocation of grant vide Nairobi HC Misc.Application No.764 of 1994 seeking the revocation of the grant issued to the respondent. The said application was however dismissed on 5th July 2001 for want of prosecution. It is the applicants’ case that they have been in occupation of the suit property since the lifetime of their deceased, who was their maternal grandfather. The applicants state that the respondent obtained the said letters of administration by fraudulently concealing material facts from the court, being the fact that the deceased had other dependants who were entitled to inherit the property that comprised his estate.
At the hearing of the summons, this court heard oral submissions made by Mr. Ngugi on behalf of the applicants and by the respondent who was acting in person. This court has carefully considered the facts of this case. The issue for determination by this court is whether the applicants made a case for this court to revoke the grant that was issued to the respondent on the grounds that the respondent had concealed facts that were material to the determination of the succession cause. Certain facts are not in dispute in this cause. It is not disputed that the deceased died in 1967 prior to the universal application of the Law of Succession Act. The Law of Succession Act is applied to estates of deceased’s persons who died after the 1st July 1981. The Succession Law applicable to the present case is therefore Kikuyu customary law. According to the applicants, they are the children of the daughter of the deceased. Their mother, Beth Mwangi was married to one Mwangi Karugo. The said Mwangi Karugo filed several suits seeking to challenge the respondent’s claim to ownership of the suit property. He even challenged the grant of letters of administration that was issued to the respondent in respect of the estate of the deceased in the High Court. He however failed to prosecute the same. The summons for revocation of grant was dismissed for want of prosecution. The said Mwangi Karugo has since died. The applicants, his children, have picked up the cudgel. The applicants claim to the deceased estate is on the basis that they are maternal grandchildren of the deceased. The respondent explained the circumstances in which she claims right of inheritance of the suit property. She stated that she was the widow of David Kamara, the son of Ndugo Kamundu who was entitled to inherit the suit property under Kikuyu customary law.
For the above reasons, this court holds that the applicants’ summons seeking to revoke the grant that was issued to the respondent by the Thika subordinate court has no merit and is hereby dismissed with costs to the respondent.
DATED AT NAIROBI THIS 8TH DAY OF APRIL, 2011