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JudgmentIn the Estate of JOHN RIUNGU MAITI8 min read

In the Estate of JOHN RIUNGU MAITI

High Court at Chuka High Court · · Lucy Gitari


(FORMERLY SENIOR PRINCIPAL MAGISTRATE’S COURT SUCCESSION CAUSE NO. 24 OF 2015 (CHUKA)

IN THE MATTER OF THE ESTATE OF JOHN RIUNGU (DECEASED)

KENNETH KIRIMI RIUNGU  ………………................................... …………………………… 1ST INTERESTED PARTY/APPLICANT

MERCY MUTHONI RIUNGU ……………………………………….  ……………...…………... 2ND INTERESTED PARTY/APPLICANT

CHRISTINE KAWIRA RIUNGU …………………………………….. ………….………………. 3RD INTERESTED PARTY/APPLICANT

-VERSUS-

JANE ROSE MBIRO RIUNGU ……………………………….…...… …………………………...…….. 1ST PETITIONER/RESPONDENT

MWIAHANDI KUURA ………………………. 2ND RESPONDENT

IRERI M’RARIA …………………….…………. 3RD RESPONDENT

R U L I N G

  1. This succession cause relates to the estate of the late John Riungu J. Maiti alias John Riungu Maiti who died intestate on 6th September, 2012.
  2. A grant of letters of administration intestate was issued to Jane Rose Mbiro Riungu, the widow of the deceased, and who is the 1st Respondent herein.
  3. Presently before this Court is the Application dated 28th October, 2022 seeking the revocation of the said grant. The said Application is premised on the grounds THAT:
    1. The procedure to obtain the grant were defective in substance.
    2. The grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the cause.
  4. The Application is supported by the affidavit sworn on the same 28th October, 2022 by Kenneth Kirimi Riungu, on his own behalf and on behalf of the 2nd and 3rd Interested Parties/Applicants. He deposed that the Applicants are the children of the deceased. That the 3rd Respondent purchased L.R. Mwimbi/Chogoria/6507 and 6508 from the 1st Respondent after the 1st Respondent filed this succession cause. Further, that the 2nd Respondent purchased L.R. Mwimbi/Chogoria/6571 from the 3rd Respondent after the Respondent allegedly filed Succession Cause No. 639 of 2015 in respect of the estate of the deceased.
  5. The Application is opposed by the Replying Affidavit and Further Affidavit both sworn by the 3rd Respondent on 2nd February, 2023 and 22nd February, 2023 respectively. The 3rd Respondent deposes that he bought 0.5 Acres from the deceased which land parcel the deceased sold to him as he (the deceased) needed to raise money for treatment after falling sick. That after the death of the deceased, the 1st Respondent was to surrender the said 0.5 Acres land parcel to the 3rd Respondent and accordingly, indicated to the chief that the 3rd Respondent was a bona fide purchaser for value from the deceased’s estate. That the deceased received the first installment of Kshs. 110,000/= for the said land parcel and the balance of Kshs. 300,000/= was paid to the 1st Respondent after the death of the deceased. The 3rd Respondent thus maintains that the present Application is being used by the 1st Applicant to unjustly enrich himself.
  6. On the other hand, the 1st Respondent swore an affidavit on 21st February, 2023 in response to the Application. She did not oppose the Application but instead deposed that she was in agreement with the 1st Applicant that the grant in question should be revoked. The 1st Respondent further conceded that she never involved her children when she was filing the present application and that as such, she now stands advised that the procedure for obtaining the subject grant was neither proper nor correct.
  7. The 1st Respondent further deposed that she did not apply to the land control board for there to be a subdivision of the estate of the deceased and that instead, it was the 3rd Respondent who worked in cahoots with a surveyor to have the land subdivided. It is the 1st Respondent’s case that the Applicants herein have therefore been defrauded by not being included in the distribution of their late father’s land.  The 1st Respondent also denied the allegation by the 3rd Respondent that she received Kshs. 300,000/=, the same being the balance for the purchase of the 0.5 Acres land parcel.
  8. On his part, the 2nd Respondent opposed the Application vide the Replying Affidavit sworn by himself on 22nd February, 2023. He deposed that he bought a piece of land known as L.R. Mwimbi/Chogoria/6571 from the 3rd Respondent on 3rd April, 2018. That he was aware that the 1st Respondent and the 1st Applicant had sold the said piece of land to the 3rd Respondent. The 2nd Respondent thus alleges that the 1st Applicant and the 1st Respondent have conspired and are trying to con him and the 3rd Respondent. Further, that he paid Kshs. 350,000/= for the land in question and that the said sale was regular. The 2nd Respondent thus agrees with the 3rd Respondent that he is a purchaser for value and as such, his title over the land in question should be protected by virtue of the provisions of Section 93 of the Law of Succession Act (the “Act”).
  9. The Application was canvassed by way of written submissions which I have summarized hereunder.

The Applicant’s Submissions

  1. It is the Applicant’s submission that the instant Application has met the threshold set out in Section 76 of the Act to have the grant confirmed in this cause revoked and/or annulled. That the proper procedure was not followed and that there was gross fraud in the manner the grant was obtained, thus making it proper material for revocation. That if at all the 2nd and 3rd Respondents purchased any land from the estate of the deceased before the confirmation of grant, such purchase was contrary to Sections 55 and 82(b)(ii) of the Act and therefore cannot be protected under Section 93 of the Act.

The 3rd Respondent’s Submissions

  1. On behalf of the 3rd Respondent, it was submitted that the present application is an engine for fraud. That the impugned grant was regularly obtained and the beneficiaries of the estate, including the 1st Applicant, were given their respective shares of the estate which they subsequently sold to third parties including the 3rd Respondent. That as such, the present application is an apparent collusion between the 1st Applicant and the 1st Respondent to steal land from bona fide purchasers. The 3rd Respondent thus urged this Court to dismiss the present Application in its entirety with costs to the 3rd Respondent.

Issue for Determination

  1. Having considered the instant Application, the affidavits made in support and in opposition of the Application, and the respective submissions of the parties, I find that the only issue that is arising for determination by this Court is whether the threshold for revocation of grant under Section 76 of the Act has been established.

Analysis

  1. The provision under Section 76 (supra) is that the Court has discretion to revoke a grant on an application by an Interested Party or on its own motion if the grounds for revoking a grant exist. The said Section provides as follows:

“76. Revocation or annulment of grant

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) …

(e) …”

  1. It is clear from the above provisions that a grant may be revoked by a court as long as the grounds listed above have been disclosed. In this case, the 1st Petitioner indicated in her application for confirmation of the grant issued to her that the deceased left behind the following beneficiaries:
    1. Jane Rose Mbiro Riungu - Widow
    2. Ireri M’Raria - Purchaser
    3. Kirimi Riungu - Son
    4. Kenneth Kimandi Riungu - Son
    5. Mwenda Gitonga – Grandson
  2. Conversely, the 1st Respondent deposed in her affidavit in response to the present Application that the deceased was survived by the following beneficiaries:
    1. Jane Rose Mbiro – Wife
    2. Mutembei Riungu – Son (deceased) left no family
    3. Lucy Karimi Riungu – Daughter (deceased)
    4. David Gitonga Riungu – Son (Deceased) but left Catherine Gitonga and Lewis Mwenda Gitonga
    5. Patrick Kimathi Riungu – Son (Deceased) left Mwenda Kimathi (minor)
    6. Mercy Muthoni Riungu – Daughter
    7. Kenneth Kirimi Riungu – Son
    8. Christine Kawira Riungu - Daughter
  3. The grant of letters of administration issued to the 1st Respondent on 4th November, 2015 was confirmed on 12th July, 2016 in the following terms:
    1. Jane Rose Mbiro Riungu  – 0.20 Acres
    2. Kirimi Riungu    – 0.15 Acres
    3. Kenneth Kimandi Riungu  – 0.15 Acres
    4. Mwenda Gitonga   – 0.15 Acres
    5. Ireri M’Raria    – 0.50 Acres
  4. The law in respect of the distribution of the estate of a deceased person commands full disclosure of the assets comprising the estate and the beneficiaries of estate and short of that, a grant cannot stand. In this case, it is not in dispute that not all the children of the deceased were involved in the distribution of the estate of the deceased and further, not all the deceased’s children received their rightful shares of the estate. For this reason alone, it is my view that the grant issued to the 1st Respondent on and confirmed on 12th July, 2016 is ripe for revocation.
  5. To add to this, it is my view that the contention that the deceased sold 0.5 Acres of land to the 3rd Respondent has not been sufficiently substantiated with evidence. Firstly, in his Replying Affidavit sworn on 2nd February, 2023, the 3rd Respondent deposed that it was the deceased who sold to him the land in question. Contrary to this, the 3rd Respondent attached to his further affidavit an agreement indicating that it is the 1st Respondent that sold land to him.
  6. Secondly, as pointed out by the Applicant, the agreement produced by the 3rd Respondent as alleged evidence of the agreement between him and the deceased is dated 4th July, 2013 whereas the deceased died on 6th September, 2012. It clearly beats logic for the 3rd Respondent to then purport that he entered into an agreement with the deceased on such a date that was after the deceased had already passed away.
  7. Thirdly, the alleged land sale agreement between the 2nd Respondent and the 3rd Respondent is dated 24th February, 2014. This is before the grant issued in this cause was confirmed on 18th July, 2016. I therefore agree with the submission by the Applicants that if there was such a purchase, then the 2nd and 3rd Respondents cannot afford protection under Section 93 of the Act as the 1st Respondent had not acquired a good title over the estate of the deceased at the point the 3rd Respondent is said to have sold to the 2nd Respondent a portion of land that had been subdivided from the deceased’s estate.

CONCLUSION

  1. From the foregoing analysis, it is my view that the present application dated 28th October, 2022 seeking the revocation of the grant confirmed in this cause on 18th July, 2016 is meritorious.

I order as follows:-

  1. The grant issued to Jane Rose Mbiro  Riungu is revoked.
  2. A fresh grant be issued to the 1st Applicant and 1st Respondent jointly.

They shall be at liberty to apply for the confirmation of grant within 30 days.

Dated, signed and delivered at Chuka this 2nd  day of May 2024.


    In the Estate of JOHN RIUNGU MAITI In the Estate of JOHN RIUNGU MAITI