NJENGA MWAURA NGOIMA vs PHOEBE WAMBETI AND ANOTHER CIVIL APPEAL NO. E455 OF 2023

Factual Background

The appellant and his brother petitioned the Magistrate’s court at Kiambu for letters of administration intestate of their late father’s estate.  In the petition that was granted by the court, they omitted their sisters from the list of beneficiaries.

Aggrieved, the respondents moved to the High Court seeking, inter alia, revocation of the grant of letters of administration issued by the Magistrate’s court. Some of the grounds of appeal before the high court included: that the grant of letters of administration and the confirmation were fraudulently obtained by making false statements and concealment of material facts, and that some beneficiaries of the estate were excluded from the succession process and did not get any inheritance from the estate.

The High Court found that the exclusion of the five daughters of the deceased amounted to concealment of material fact and therefore a valid ground for revocation of the grant. The High Court proceeded to revoke the grant, prompting an appeal to the Court of Appeal.

Court of Appeal on whether the revocation of the grant was justifiable

One of the issues before the Court of Appeal was whether the High Court erred in ordering the revocation of the grant of administration.  The appellate court concurred with the High Court, holding that failure to include the five sisters from the list of beneficiaries amounted to concealment of a material fact from the court. According to the Appellate court, an application for grant of letters of administration should be accompanied by the names of all the surviving children of the deceased. 

The Appellate court dismissed the justification by the appellant that the sisters were not entitled to a share of their father’s estate under Kikuyu Customary law as they were married women. The court was of the position that this amounted to a full-throttle patriarchy that is plainly discriminatory and could not, therefore, hold any water. 

Grant and Revocation of Grants of Administration

Application for grant of representation

Applications of grants, as provided for under section 51 of the Law of Succession Act (LSA), should be signed, witnessed and accompanied with the following information: full names of the deceased, date and place of his or her death, deceased last known place of residence; the relationship (if any) of the applicant to the deceased; whether or not the deceased left a valid will; the present addresses of any executors appointed by any such valid will; in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased; a full inventory of all the assets and liabilities of the deceased and any such information as may be required. 

If the deceased left a valid will, either written or oral, the grant application has to be accompanied with the following: if the will is written, an annexure of the original will, and if the will is oral, the names and addresses of all alleged witnesses shall be stated in the application.  The Act envisages situations where the original will, written, may have been lost or destroyed.

Provided that the will has not been revoked, an application where the original has either been destroyed or lost is to be accompanied by either an authenticated copy of the will or the names and addresses of persons able to prove the contents of the said will.

Revocation of grant of representation

Section 76 of LSA gives the High Court the power to revoke or annul a grant either on its motion or application by any interested party. A grant will be revoked or annulled on any of the following grounds: where the proceedings to obtain the grant was defective in substance; where grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; where 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; where  the grant has become useless and inoperative through subsequent circumstances and where the person who obtained the grant has failed to apply for confirmation of the grant one year after it was granted, has failed to diligently proceed with administration of the estate.

Takeaway

When applying for a grant of representation, always include all dependents of the deceased. Any exclusion may have a fatal effect on your application.

For help in making an application for a grant of representation, don’t hesitate to contact us.