John Mutongoria Habuba v Thomas Kegocha Mosabi [2014] eKLR

Key Facts

Deceased Name

Issues

• The court needs to assess whether the applicant has presented sufficient evidence to warrant the revocation of the grant issued to the respondent. This includes evaluating if the grant was obtained fraudulently through false statements, concealment of material facts, or failure to disclose all beneficiaries and the correct value of the estate.
• The court must determine from whom a child of a Kuria Woman to Woman Union inherits. This involves assessing the legal status of the respondent, who is a grandson of the deceased through a customary marriage where the deceased married a woman (respondent's mother) under Kuria law, and whether the respondent is entitled to inherit under this union.

Date of Death

Holdings

• The court found that both the respondent and PW2 obtained grants of letters of administration through fraudulent concealment of material facts, including the joint ownership of the land and failure to disclose all beneficiaries. The grants were revoked for defects in substance and fraudulent conduct, with the court directing fresh petitions to the High Court of Kenya at Migori.
• The court determined that the deceased's marriage under Kuria customary law (Woman to Woman Union) entitled the respondent (as a grandson) to inherit her estate. The law recognizes children from such unions as belonging to the woman who paid the ikihongo, thereby establishing the respondent's right to succession.

Estate Value

Remedies

• The court ordered that each party shall bear their own costs for the application, as no single party was held solely responsible
• The court revoked the Grants of Letters of Administration issued to both the respondent and PW2 in Succession Causes No.7 and No.8 of 2010, as they were obtained through fraudulent means and concealment of material facts
• All consequential actions arising from the previously issued grants were revoked by the court
• The court declared that the SRM's Court at Kehancha lacked the necessary pecuniary jurisdiction to determine the succession cause, as the value of the subject matter was more than Kshs.100,000/=
• The court permitted the parties to file fresh applications for Grants of Letters of Administration in the High Court of Kenya at Migori, either jointly or individually as they see fit

Will Type

Probate Status

Legal Principles

• The court applied the Kuria customary law on woman-to-woman marriages (Ogotetwa bosino), where a barren woman marries a girl, pays ikihongo, and any children belong to the woman who paid the ikihongo. This established the respondent's right to inherit as a grandson of the deceased.
• The court revoked the grant of letters of administration under Section 76 of the Law of Succession Act due to fraudulent concealment of material facts, including failure to disclose co-ownership of the land and higher-ranking beneficiaries, and filing in a court without jurisdiction.

Succession Regime

Precedent Name

Executor Name

• Charles Muchuma Habuba
• Thomas Kegocha Mosabi

Cited Statute

• Probate and Administration Rules
• Law of Succession Act

Executor Appointment

• Administrator (Grant of Letters of Administration obtained from Kehancha SRM's Court)
• Administrator (Grant of Letters of Administration issued to him on 12th May 2010)

Judge Name

Passage Text

• The court ordered: "...the Grants issued to both the Respondent and PW2 in Succession Causes No.7 and No.8 of 2010 be and are hereby revoked."
• The court declared: "...the SRM's Court at Kehancha had no pecuniary jurisdiction to determine the succession causes whose subject matter was more than Kshs.100,000/= in value."
• "A grant of representation, whether or not confirmed may at anytime 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."

Beneficiary Classes

• Dependent Relative
• Other