Automated Summary
Key Facts
The deceased, Dr. Stephen Gitau Kimemiah, died testate in Zimbabwe on May 19, 2000, leaving a valid will dated May 5, 2000. The will appointed Cuthbert Mpame as testamentary executor and bequeathed movable and immovable properties to his daughters: Pearl Nduta Kimemiah, Alexandria Nyambura, and Michelle Wangari. Respondents Sammy Gitau Gedion and Dedan Njoroge Gitau fraudulently applied for Letters of Administration in Kenya, falsely claiming the deceased died intestate and concealing the will and existence of the widow and daughters. The court found material falsehoods in their application forms, including incorrect deceased names, a fabricated death certificate (stating death in 2010 when he died in 2000), and false familial relationships. The Grant of Letters of Administration (September 21, 2010) and its confirmation (November 29, 2010) were revoked due to fraudulent concealment and failure to disclose beneficiaries. The disputed land, Title Number Kericho/Kipkelion/Barsiele Block 2 (Kaplaba) Plot 19, was confirmed as part of the deceased's estate.
Deceased Name
Dr. Stephen Gitau Kimemiah
Issues
- The Applicant claimed her consent was never sought when the Respondents petitioned for the Grant, which the court found to be a material concealment, constituting fraud under Section 76 of the Law of Succession Act.
- The court identified multiple fraudulent statements in the Respondents' application, including false names for the deceased, an incorrect Certificate of Death (alleging death in 2010 when he died in 2000), and fabricated family relationships.
- The Applicant argued the Grant was obtained by not sending citations to all dependants, including herself and her daughters, which the court deemed a substantive defect in the proceedings.
- The Applicant contends the deceased died testate (with a will) in 2000, while the Respondents claimed intestacy. The court confirmed the existence of a valid will dated 5th May 2000, which bequeathed assets to the deceased's daughters, not the Respondents.
- The court found that the Respondents concealed the existence of the Applicant (the deceased's wife) and her three daughters, who were entitled to the estate, during the Grant application process.
Date of Death
2000 May 19
Holdings
- The Respondents, being intelligent, could have inquired at the High Commission of Zimbabwe or through the Kenya Ministry of Foreign Affairs to determine the deceased's family status before proceeding with the Grant application.
- The Grant was obtained fraudulently through patently false statements (e.g., false name, date/place of death, and number of children) and by concealing material facts, including the Applicant's lack of consent to renounce her right to petition for Letters of Administration.
- One of the immovable properties bequeathed in the will is Title Number Kericho/Kipkelion Barsiele Block 2 (Kaplaba) 19 referred to in the will as Kipkerion (Kericho East District, Rift Valley Province, Kenya).
- The Grant dated 21st September 2010 and confirmed on 29th November 2010 was obtained by failing to disclose material facts, specifically that the deceased was survived by his wife Auriel Marie Joy Kimemiah and three daughters, none of whom were listed in the Petition.
- The proceedings to obtain the Grant were defective in substance as citations were not sent to all dependants/beneficiaries of the estate, including the Applicant and her daughters.
- The Respondents never adduced any evidence that the deceased Stephen Gitau Kimemiah donated the parcel of land to the Respondents' father in 1978, 1992, or on any other occasion when he visited Kenya.
- The deceased died not intestate but left a valid will dated 5th May 2000 issued to Cuthbert Mpame by the High Court of Zimbabwe. The will bequeathed his movable and immovable properties to his daughters Pearl Nduta Kimemiah, Alexandria Nyambura and Michele Wangari.
Remedies
- The Grant of Letters of Administration made to Sammy Gitau Gedion and Dedan Njoroge Gitau on 21st September 2010, confirmed on 29th November 2010, was revoked and annulled. All consequential acts and transactions by the respondents were set aside and quashed.
- The applicant was awarded the costs of her application dated 6th June 2011 and filed on 23rd June 2011.
Will Type
Attested Will
Probate Status
The Grant of Letters of Administration was revoked by the court.
Legal Principles
The court applied the principle that a grant of letters of administration can be revoked if obtained fraudulently by making false statements or concealing material facts (Section 76 of the Law of Succession Act). This included deliberate misrepresentations about the deceased's name, death details, and the absence of a will, as well as failure to disclose the existence of the applicant and beneficiaries.
Succession Regime
Succession governed by Kenya's common law testate regime, as the deceased left a valid will dated 5th May 2000 executed in Zimbabwe.
Executor Name
Cuthbert Mpame
Cited Statute
- Law of Contract Act
- Law of Succession Act
Executor Appointment
Testamentary Executor named in the deceased's will dated 5th May 2000.
Judge Name
M. J. Anyara Emukule
Passage Text
- Firstly Stephen Gita Kimemiah died not intestate but died leaving a valid will and a Grant of Letters of Administration with a Will annexed of the deceased the said Stephen Gitau Kimemiah dated 5th May 2000 was issued to the Testamentary Executor one Cuthbert Mpame by the High Court of Zimbabwe on 31st May 2000, and that in the will the deceased bequeathed his movable and immovable properties to his daughters Pearl Nduta Kimemiah, Alexandria Nyambura and Michele Wangari.
- In the premises, the Grant made herein on 21st September 2010 and confirmed under a Certificate of Confirmation of a Grant made on 29th November 2010 are hereby revoked and annulled. All consequential acts and transactions of or by the Respondents are hereby set aside and quashed.
Beneficiary Classes
- Child / Issue
- Spouse / Civil Partner