Grant properly issued by court may be revoked by court either on its own motion or by court either on its own motion or by application by a third party on grounds set out in S 76.
- Proceedings making the grant are defective in substance
- Where the grant is obtained on reliance on false statements, non-disclosure or concealment of important matter or information;
- Where there is failure to apply for the grant within the period provided by the law for making a grant (6 months) or where there’s failure to diligently administer the estate or having failed to produce to the court within the prescribed time any inventory or account of administration as required in law
- Where the grant becomes useless and inoperative through subsequent circumstances (section 76).
The grounds can be divided into two: the first two grounds deal mainly with the propriety of the grant making process; the other grounds deal mainly with mal-administration i.e. personal representatives have not been effective in administration
The proceedings to obtain grant are considered defective in substance where the will, which is the basis of the application, is invalid. In Mwathi vs. Mwathi and Another (1995-1998) 1 EA 229 grant was revoked on will being found to be invalid. It can also be founded on failure to notify all the interested persons of the filing of the petition of grant. In the Matter of the Estate of Mwaura Mutungi alias Mwaura Gichigo Mbura alias Mwaura Mbura (deceased) Nairobi HCSC No. 935 of 2003 grant was revoked because the grantee had failed to notify the applicant of the petition and to obtain his consent. In Re Estate of Naftali (deceased) (2002) 2 KLR 684 the estate of a deceased Congolese, who died in Kenya his domicile being in either Congo or Rwanda, comprised of movables only. The grant made by a Kenyan court was revoked on the ground that the process of obtaining the same was defective. Under S 4(1) (b) of the LSA, it applies with regard to movable property is the law of the country where the deceased is domiciled. In Musa vs. Musa (2002) 1 EA 182 it was held that the letter from the chief and the sureties are not mandatory requirements whose absence would affect the status of a grant. Grant was however revoked on other grounds i.e. on the basis of S 58 where, when survivors of deceased are minor the grant should be made to the surviving spouse jointly with another person, in this case the grant was made to one person hence inconsistent. In the Matter of the Estate of Karanja Gikonyo Mwaniki (deceased) Nakuru HCMisc. 245 of 1998 the court on its own motion, in keeping with S 76, of the LSA, revoked a grant in, because the proceedings to obtain it were defective. The grant had been issued by a Resident Magistrate in respect of an estate whose value was Kshs. 240 000.00. Ondeyo J held that the Resident Magistrate had not jurisdiction to make the grant since his jurisdiction was limited to an estate whose value did not exceed Kshs. 100 000.00.
False statements and concealment of vital matters
In Samwel Wafula Wasike vs. Hudson Simiyu Wafula CA No. 161 of 1993 it was alleged that the appellant had deceived the court when he stated in his petition that he was a grandson of the deceased. The deceased was in fact not his grandmother, but a sister of his grandmother. The persons who had prior right to the grant had not given their consent. It was held that the grant had been obtained fraudulently by the making of a false statement and it was revoked. In the Matter of the Estate of Robert Napunyi Wangila Nairobi HCSC No. 2203 of 1999 the sister of the deceased applied for and obtained letters of administration. She didn’t disclose in her petition that the deceased had died testate and that a grant of probate had already been issued to the executors. Her grant was revoked on application of the executors.
Lack of diligence in administering the estate
Failure to apply for confirmation of the grant within one year and failure to produce into court accounts or inventories as may be required of them are the other ground for revoking a grant. In In the Matter of the Estate of Mohamed Mussa (1997) the grant was revoked because the administrators had not kept any records of accounts of their administration and one of the administrators was not capable of discharging her duties on grounds of poor mental health and old age.
Grants becoming inoperative or useless
In the Matter of the Estate of Elizabeth Wamaitha Ngaruiya (deceased) Nairobi HCSC No. 2499 of 2001 the only asset was a parcel of land in respect of which the deceased had registered an overriding interest (S 30 RLA). It was held that an overriding interest dies with the registered owner. Its not an absolute interest and enjoyable only by the owner. Grant becomes useless as there was no other property to be administered in strength of the grant.
Procedure for revocation of grant (Rule 44 of the P&A Rules)
It takes the form of a summons of a revocation and can only be revoked in an application to the HC. When revocation is by court on its own motion, the same must be founded on grounds set out in S 76 (lack of diligence, defective proceedings etc). In Isabella Gichugu Matheka and another vs. Eric Muthui Matheka Nairobi (2002) the Court of Appeal of Kenya held that the HC was not entitled to revoke a grant on grounds other than those set out under S 76 where it had done the same on its own motion.
Under S 76, the court has discretionary power when faced with application of revocation. It can make such orders as it considers fit in the circumstances. The court is not bound to issue revocation even where the case has been set out under S 76 e.g. In Kipkurgat arap Chepsiror and others vs. Kisugut arap Chepsiror CACA No. 24 of 1991, the court declined to grant the prayer for revocation, but instead entered the names of the applicants in the grant as beneficiaries. They had sought an order of revocation on the ground that their names had been omitted from the list of the survivors of the deceased. In the Matter of the Estate of Jonathan Mutua Misi (deceased) Machakos HCP&A 95 of 1995 the applicant sought revocation of grant on the grounds that the grant had been obtained on false statements. He was a son of the deceased his name had been omitted from the list of survivors. Court found that he was indeed a survivor and heir of the deceased, but instead of ordering the revocation of the grant directed that the applicant’s name be included in the list of heirs and survivors. In the Matter of the Estate of Hemed Abdalla Kaniki (deceased) Nairobi HCSC No. 1831 of 1996 it was held that there is not time limitation for bringing revocation proceedings. In another case, it was held that it can be brought long after the estate had been distributed.
Other Contentious Matters
1) Application for review of probate orders and decree as brought under Order 45 of CPR
2) Application under S 35(3) of the LSA
3) Application under Ss 61 & 75 of the Act. This may be brought following the delivery of a codicil after the making of the grant and in the application, one is seeking the incorporation of the codicil in the grant. The proceedings become contentious when a beneficiary opposes the codicil
4) Under S 26 for reasonable provisions
Costs of Contentious Proceedings
As a rule, the costs of the action follow the event, that is, they are to be borne by the losing party. Under S 69 P&A Rules, court has unfettered discretion on who should pay costs but in most cases the court would order each party to bear their own costs in order to promote reconciliation and understanding within the family. However, where the litigation is provoked by acts of the deceased either during his lifetime or by the manner he distributed property costs should be borne by the estate. In Rashida Begum vs. Administrator General and another (1951) 18 EACA 102 the former Court of Appeal for Eastern African held that the testator himself was responsible for the litigation by the manner he elected to dispose of his estate and awarded all the parties costs out of the general estate.. In Anastacia Mutheu Benjamin vs. Lakeli Benjamin and another Nairobi CACA No. 6 of 1979 the appellant married the deceased under Kamba customary before first getting her previous statutory marriage dissolved or annulled and it was held that she, by virtue of S 4 of the ACMDA and S 37 of the Marriage Act, had not capacity to contract another marriage with the deceased, and she was therefore not entitled to inherit his estate. With regard to costs the Court of Appeal found that the appellant had cohabited with the deceased for many years as his reputed wife and that she had also contributed substantial sums of money towards the cost of acquiring some of the assets making up the estate, and directed that the appellant’s costs of the appeal and at the High Court be borne by the estate. In the Matter of the Estate of John G. Kinyanjui (deceased) Nairobi HCP&A No. 317 of 1984, no order for costs was made against an objector since it was considered that the deceased had by his long association with the objector helped create the dispute that had to be resolved through the litigation.
Where the litigation is needlessly brought by the objector or applicant, they should bear the cost. In Karanja and another vs. Karanja (2002) 2 KLR 22 in ordering that the objector bear her own costs the court considered that the objector had been the cause of the long and protracted litigation, she had no genuine reason for the objection, she had the benefit of a very able and experienced counsel and at the very early stages of the matter the court had given directions on the valid grounds for challenging the validity of wills and codicils (which directions the objector ignored).
Where the circumstances leading to or triggering the litigation or the appeal are not caused by any of the parties the court would order that each party bear their own costs. In Thumbi Weru and others vs. John Wachira Mwaniki Nyeri CACA No. 191 of 1998 the Court of Appeal took into account that neither of the parties to the appeal had contributed to the woeful decision of the judge and ordered each party to bear their own costs.