The court ruled that the widow's failure to disclose material facts justified the revocation of her appointment as administrator of the estate.
A widow has been dealt a blow after the Mombasa Family Court revoked a grant issued to her to administer her husband's multi-million dollar estate.
Justice Gregory Mutai revoked the grant issued to Ms Katherine Wambugha Walele, ruling that she had failed to disclose material facts when she applied for the document.
The judge noted that this case presented one of the instances where the exercise of the court's power to revoke the grant was called for.
"Therefore, having concealed material information, I find and hold that the grant issued to the administrator/respondent herein should be revoked. In the circumstances, the grant issued on January 26, 2014, is hereby revoked," the judge said.
He further ordered the executors to file an application for letters of administration in respect of the estate of Gasper Walele Mwanguwa (deceased) within 30 days from November 19.
"In my view, the administrator/respondent had a duty to disclose all relevant information, including that which would have made it less likely that the court would grant her a grant. By failing to disclose the earlier petition, she concealed material information," the judge said.
The matter in dispute arose from the estate of the late Gasper, who died intestate and was resident in Kenya.
Ms Wambugha instituted the probate proceedings in May 2023, claiming to be the widow of the deceased.
According to court records, she did not attach to her petition, nor did she cite, the consent of the beneficiaries entitled to the same degree or priority as herself.
The court noted that this was presumably because, as the widow of the deceased, she ranked higher than the deceased's children.
The petition was subsequently gazetted. After the requisite period lapsed with no objections received, the grant was issued to her.
However, her three sons moved to the court in April this year, via summons for the revocation of the grant issued to their mother.
“That the grant of letters of administration issued to Ms Wambugha be revoked and cancelled,” three sons John Ighacho, Focus Walele and Julius Mndwarigah said.
In the supporting affidavit sworn by Mr Ighacho, he averred that the Grant of Probate concerning the deceased's estate was issued jointly to him, Veronica Kalamba Walele, and Mr Mndwarigha on January 18, 2019.
He added that the grant of probate was subsequently confirmed on November 11, 2022, with the Certificate of Confirmation of Grant being issued 19 days later on November 30, 2022, in High Court Succession Cause No. 355 of 2010.
He attached the relevant rulings from the Probate and Administration Court (differently constituted) through which they were appointed.
“Whereas some of the deceased’s assets were not included in the will, we were in the process of filing the necessary petition when we came across this petition by Ms Wambugha,” he said.
He averred that Ms Wambugha obtained the grant by means of untruthful or false statements, material nondisclosure, and concealment of crucial information in the cause.
However, Ms Wambugha in her swift response, deposed that her petition was in respect of the assets that were not in the will.
“There was nothing wrong with having two grants of representation for the same estate, there would be no conflict between the two as one was in respect of the testate estate while the other was for the intestate estate,” she argued.
Court records show that on July 22, this year, Ms Wambugha filed a summons for confirmation of the grant vide which she sought to have the grant issued on January 26, 2024.
But her sons told the court that there was already a grant of probate regarding the deceased’s estate and that the lodgment of this matter was an abuse of the court process.
The court was told that the deceased’s assets not in the will could be handled under the intestacy provision within the petition already filed.
Also, the court was told that the administration of the deceased's intestate estate is determined in Succession Cause No. 335 of 2010 and not in this matter.
Through their counsels, Mr Ighacho, Mr Walele and Mr Mndwarigah accused Ms Wambugha of not having disclosed the details of the bank accounts belonging to the deceased’s estate, which were under her control.
The three also accused Ms Wambugha of failing to account for the income she received from the deceased’s properties, which they claim amounts to millions of shillings.
They therefore urged that the grant issued to her be revoked.
The woman’s counsel submitted that the deceased died partly testate and partly intestate and that she was within her rights as the deceased’s widow to apply for the grant of letters of administration intestate concerning the intestate estate.
She also argued that she had disclosed her petition was regarding the estate of the deceased that was not included in his written will.
“For that reason, a reading of the application does not demonstrate that Ms Wambugha made a false statement. It has not been proved that any material information was not disclosed to the court,” she said through her advocate.
The woman also argued that a grant of probate could only be made with respect to the properties whose disposition was subject to the will and that the remainder of assets could only devolve under the law governing intestacy, adding that the objectors misconstrued the law.
Justice Mutai agreed with the objectors, observing that Ms Wambugha made no mention of the existence of the petition for grant of probate nor that the grant issued therein was confirmed and that the proceedings in respect of the testate succession were extremely contentious.
“This information was within her knowledge and would have helped the court determine whether or not to issue the grant to her,” the judge said.
Justice Mutai noted that although the woman mentioned in her documents that the assets she listed were not included in his written will, the reference to the will therein, having previously indicated that the deceased died intestate, is, in the view of the court, deceptive.
Having found that there was material non-disclosure, the court explained the circumstances under which a widow, though ranked higher than her children and not required to seek their consent, can have the administrative documents revoked.
Section 76 of the Law of Succession Act provides that a grant of representation, whether or not confirmed, may be revoked or annulled at any time if the court decides, either on application by any interested party or of its own motion.
It further states that the grant may be revoked if the court finds that the proceedings to obtain the grant were defective in substance and that it was obtained fraudulently by making a false statement or by concealing something material from the court.
The grant can also be revoked if the court finds that it was obtained by means of an untrue allegation of a fact essential in law to justify the grant, even if the allegation was made in ignorance or inadvertently.
The deceased, Gasper, served as a councillor of the defunct Mombasa Municipal Council and was once the Mombasa branch chairman of the Kenya National Chamber of Commerce and Industry (KNCCI).
The property in question includes commercial buildings and plots in Mombasa and Nairobi, as well as parcels of land in Taita Taveta.
