Reasons For Revoking Grants Of Representation In Kenya

In simple terms, a grant of representation (a “Grant”) can be defined as authority given to a person by the court to act in respect of a deceased’s person’s estate. Once a Grant is issued and confirmed, the personal representative has the legal authority to distribute the estate to the beneficiaries. It is worth noting however, that the issuance of a Grant is not necessarily final; the Grant can in fact can be revoked or annulled by the courts where there are sufficient grounds to do so. Accordingly, section 76 of the Law of Succession Act (Cap. 160, Laws of Kenya) (the “LSA”) provides the grounds under which a Grant can be revoked or annulled (hereafter collectively referred to as “revoked”), whether or not it has been confirmed. In this article, we will discuss the said grounds and the consequences of revocation of a Grant.

Who can apply for revocation of a grant?

1. An interested party

An interested party, such as beneficiaries of an estate, can apply for the revocation of a Grant. It is incumbent upon any party making an application for revocation of Grant to demonstrate the existence of any, some or all of these grounds, whatever the case may be.

2. The Court

The court can revoke a Grant on its own motion.

What are the grounds for revocation of a grant?

The grounds for revocation of Grant as per section 76 of the LSA are listed below, together with practical examples from previously decided cases.

• the proceedings to obtain the Grant were defective in substance

The proceedings to obtain the Grant are considered defective in substance where for example, the Will, which is the basis of applications for Grant of Probate, is invalid or where there are certain procedural defects in the application for or the making of the Grant. In re Estate of Nazir Khan Mohamed (Deceased) eKLR, a petition for Grant of probate was filed by executrix named in the Will. An Objection and an Answer and Cross Application were subsequently filed by an objector; however, the Grant was issued to the executrix without the hearing and determination of the objection. The objector therefore applied for revocation of Grant as it was issued irregularly before hearing and determination of the objection. The court found that at the time the Grant was issued, the Objection and an Answer and Cross-Application filed by the objector were not in the court file. The stamps on the documents however indicated that the court received these documents before issuing the Grant. As such, the court was under an obligation to determine the dispute before issuing the Grant. The court was satisfied that the proceedings to obtain the Grant were defective in substances and revoked the Grant.

• the Grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case

In re Estate of the Late Epharus Nyambura Nduati (Deceased) eKLR, the applicant (the “Purchaser”) made an application to revoke the Grant for reasons that the administrators obtained a confirmed Grant by way of concealment of material facts that he was entitled to two (2) acres of land (the “Property”), having bought the same from the deceased, therefore, the proceedings were defective in substance. The Purchaser purchased the Property from the Deceased vide agreements dated 6/9/94, 28/6/94 and 24/2/95. The Deceased died before transferring the Property to the applicant but the applicant took possession of the Property immediately after the purchase. The applicant’s name was accordingly included in the Summons for Confirmation of Grant as a beneficiary of the Property. The Purchaser later found out that the administrator had filed a further affidavit to remove the applicants name due to differences allegedly arising between the parties relating to subdivision of the Property before confirmation of grant. The administrator claimed that the applicant consequently sought a refund of the purchase price paid, causing the administrator proceeded to sell the Property to a third party before the Grant was confirmed to enable him to refund the Purchaser. The Purchaser however submitted that he could only have denounced his entitlement by signing a consent to the proposed mode of distribution removing his name and he should have appeared before court to confirm his consent to his entitlement being distributed to another person. The court found that the administrator had colluded with the third party to disinherit the Purchaser as there was no evidence that the Purchaser denounced his interest in the Property or asked to be refunded or was even refunded. As such, the manner in which the confirmation of Grant was undertaken was improper. The court however focused on the fact that the administrators had knowledge of the fact that the Purchaser had purchased the Property from the deceased and still proceeded with the sale to the third party before the Grant was confirmed, contrary to s. 82 of the LSA. It therefore revoked the Grantland subsequent confirmation as it was obtained fraudulently by making false statements or by concealment from court of the sale of the Property and cancelled the title of the Property in the name of the third party.

• 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

In Charles Mukonu Kiruki v Celina Nyai Kiruki eKLR, a Grant was issued to the administrator, the son the deceased. The widow of the deceased filed an application for revocation of Grant on the grounds provided in s. 76 (a)(b) and (c) of the LSA, claiming that she is entitled to administer the estate, unlike the administrator, who was her step son. She further contended that immediately after her husband’s death, the administrator and his siblings started creating problems, issued threats to evict her from her house and declined to sign papers she had prepared for purposes of applying for the grant. Instead, they filed and served her with a citation. The applicant submitted that hardly three months after the deceased’s death, the administrator and his siblings had started the process of filing for succession and before she could mourn her husband, she was served with a citation. She entered appearance but no notice was ever served on her to the effect that the court had allowed the step son to file for the full grant. As the wife, she ranked in priority in administering the estate. The step-son on the other hand claimed that since the death of the deceased, the widow had been receiving the deceased’s tea payout amounting to KES. 2,000,000 per year but she had refused to support one of the deceased’s son who was mentally challenged. It was further argued that the applicant had been cultivating the deceased’s arable land alone and collecting rent from a plot at Makutano market.  The step-son therefore sought orders to order the widow to deposit the income from the estate in court. The court found that the citation placed an obligation upon the citor to serve the person cited with notice of any application for a Grant to himself, which was not done. Additionally, the Affidavit in support of the Petition for Letters of Administration filed by the step-son did not list the widow as a beneficiary of the estate. The court held that it was a major concealment of material fact, revoked the Grant and appointed the widow and step-son to act as joint administrators.

• the personal representative has failed, after due notice and without reasonable cause either:
• to apply for confirmation of the Grant within one year from the date thereof, or such longer period as the court order or allow;
• to proceed diligently with the administration of the estate; or
• produce to the court, within the time prescribed, any such inventory or account of administration or has produced any such inventory or account which is false in any material particular

In re Estate of Agwang Wasiro (Deceased) eKLR, an application for revocation of Grant was made by Joshua Oluoch Mahero, who had purchased property from the deceased. The application was on the grounds that the administrator, Anthony Okello who was one of the sons of the deceased, had failed to take action to finalize the matter. A second application was filed by Donald Oroka (another son of the deceased), who complained of the following:

1. the administrator had failed to complete administration of the estate by failing to apply for confirmation;
2. the administrator had not proceeded diligently with administration; and

• the Grant was obtained fraudulently by making of false statements and by concealment from court of certain facts.

In reviewing the applications, the court held that technically, no case had been made by the applicants for revocation of the grant. However, it noted that it had been more than one year since the Grant was made, yet the administrator has not acted by way of moving the court for confirmation of grant. The court therefore found that the administrator was not the proper person to be placed in charge of the estate. In exercise of the powers in section 76 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, the court on its own motion, revoked the grant, appointed Donald Oroka Oneka as the administrator and issued a Grant of letters of administration intestate to him accordingly.

• the Grant has become useless and inoperative through subsequent circumstances

In re Estate of Laban Njenga Mundia (Deceased) eKLR, the administrator, named Josephine Nduta, filed Summons for Confirmation of Grant. Alvin Kamande Njenga (the “Objector”) filed a replying affidavit which was effectively an affidavit of protest. By way of background, a Grant was initially issued to the widow of the deceased, named Esther Njeri Njenga (“Esther”) and confirmed. The Objector filed an application seeking to revoke the Grant in favour of Esther, who was also his mother. During the course of the hearing of the application, Esther passed away.  Following her demise, Josephine was appointed as the administrator. Josephine claimed that her appointment  represented a fresh Grant issued to her and she therefore had the authority to apply for confirmation of Grant. The Objector however claimed that the court had no powers to appoint a substantive Administrator. The Grant had become useless and inoperative upon his mother’s death; therefore, Josephine was only appointed as administrator for purposes of prosecuting the summons for revocation of Grant he had filed. The court agreed with the Objector and held that Josephine had been appointed by court as administrator only for purposes of proceeding with the summons seeking revocation of grant. It further held that the legal position is that where a sole administrator passes away, the Grant becomes useless and inoperative. The person seeking to replace the Deceased Administrator must first apply to the have the initial Grant revoked and include a prayer that a fresh Grant be issued to himself with a further prayer for confirmation, if relevant. The court therefore held that the Grant issued to Esther had become useless and inoperative on account of her demise and Josephine had no capacity to file a summons for confirmation of grant. Acting on its own motion, the court revoked the certificate of confirmation of Grant issued to Esther and directed the family to agree on an administrator to whom a fresh Grant may be issued.

What happens once the Grant is revoked?

Once a Grant is revoked, the court revokes the power of the personal representatives’ powers to act in respect of the estate of the deceased. The court thereafter issues directions on the appointment of an administrator or the application of a new Grant, so that the estate is not left unadministered.

Conclusion

It goes without saying that personal representatives should have the interests of the beneficiaries of the estate to heart. However, this is not always the case as grants are sometimes issued to individuals who may not be efficacious in handling the estate. If the provisions of section 76 apply in your circumstances, it would be in the best interests of the estate for such a Grant to be revoked or annulled. To this end, it is prudent to have good legal representation to analyze the circumstances of your case and advise on the best of action.Please click here to download the article

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This article is for informational purposes only and should not be construed as legal advice.