[2017] KEHC 2307 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 121 OF 1996

THE MATTER OF THE ESTATE OF NGUTHARI MBOGORI (DECEASED)

CHRISTINE KAJUJU MWENDA…………………………………….PETITIONER/APPLICANT

-Versus-

GERVASIO M’RUKUNGA .………………...………………………. OBJECTOR/RESPONDENT

RULING

[1] This decision relates to summons application dated 26th August 2015. The application is expressed to be brought under Section 49, 63 (1) & 73of the Probate and Administration Rules and Order 45 of the Civil Procedure Rules.In the application, the Applicant seeks for orders:-

(a) Revocation of the grant confirmed to the Objector CHARLES KITHINJI on 5th December, 2012

(b) Cancellation of all entries made in the Register of NO. NYAKI/MULATHANKARI/551 pursuant to the said confirmation and land to revert back to the name of the deceased, NGARUTHI MBOGORI until this cause is determined.

(c) Inhibition upon the estate property herein.

[2] The following grounds were citedto be in support of her application:-

(a) That the grant letters of administration herein made on 5thAugust 1996 and confirmed on 9th October 1996 to Applicant was revoked on 27th June 2006 upon the application made by the Respondent.

(b) That the Applicant is entitled to NO. NYAKI/MULATHANKARI/551(hereinafter estate property) having inherited it from her father and that the Objector is only a distant relative of the Deceased.

(c) That the Applicant sold the Suit Landto MICHAEL NDUMBA MWITHIMBU. The wife of MICHAEL NDUMBA MWITHIMBU had cautioned the estate property claiming beneficiary interest but the land registrar has threatened to revoke caution. Now the Objector has ready buyers to buy the aforesaid land.

(d) That the Applicant’s legal counsel at the time, oneMr.Mukuadid not inform the Applicant of any hearing date since the revocation of the 1st grant.

[3] The averments in the Applicant’s supporting affidavit portend that: (1)she inherited the estate property from her father who had inherited it from the deceased; (2) she is in occupation of the estate property; and (3) she filed this succession cause to formally inherit the Deceased’s estate. Further averments reiterated the points set out in the body of the application and added that other than not being informed of the hearing date after revocation of grant, there is nothing on record to show that her advocate on record were ever served with hearing notices from the firm of Kiautha Arithi. And that since 2006 the case has been proceeding in her absence.The Applicant stated that she thought that everything was over and told MICHAEL NDUMBA’s wife to follow the matter at the Land Registry so as to get her title. She cautioned the land but the Land Registrar wants to remove the caution. The Applicant further deponed that she thought at one time that the land was registered in the name of Michael as per the green card annexed as evidence marked “CKM 2”. The Applicant states that she should not be punished due to the mistakes of her former advocate. Since she is entitled to the estate and seeks that the grant be annulled and case on distribution be done a fresh.

Administrator returned fire

[4] CHARLES GITHINGI, in his replying affidavit dated 21st September 2015 states that he is the son of the Deceased Objector GERVASIO M’RUKUNGA and competent to respond to the application. The Suit Land was originally registered in the name of the Deceased who was his grandfather. He died in 1988 leaving his father, the Objector, as the only heir to his estate. The Applicant applied for letters of administration which were granted to her and the grant confirmed thereafter. On 27th June 2006 Judge Isaac Lenaola annulled the grantfor he found that the Applicant had intermeddled with the estate and failed to obtain the requisite consent from CECILIA KAREGI who is the daughter of the Deceased and who did not have priority over the subject matter. He averred that by selling the land to MICHAEL MDUMBA while there was a matter pending in court demonstrates how evil her intentions were. He further states that being the only heir to the estate of the Objector (Deceased) who inherited from the Deceased, he ended up inheriting the said land. That the orders of inhibition sought by the Applicant are not merited since she has other avenues such as appealing and seeking review of revocation n orders. That she had not acquired the land legally and so she cannot call upon the court to issue an order of inhibition.Additionally, the Respondent argued that Applicant’s misfortunes with her advocate should not be visited upon him for the proper party to pursue is her advocate. She should be barred for using the Suit Land since the subject matter passed to him legally and the court upheld so in its decision. The Applicant should allow him to enjoy his legal entitlement peacefully.

DETERMINATION

[4] The court has been called upon to annul or revoke the grantdated 5th December 2012 made and confirmed to CHARLES KITHINJI who is theson of the deceased Objector herein. By judgment delivered on 27th June 2006 by Lenaola J (as he then was), the court revoked the grant issued to the Applicant. The judge cited a number of reasons for the revocation of grant including but not limited to; concealment of material facts and intermeddling with the estate.The court in the foregoing judgment however, observed that none of the two feuding parties herein was in a better position to claim any superior entitlement in the estate given the fact that the deceased had a direct heir- his daughter. According to the court, each of the two can only enter the cause to prove their entitlements during distribution of the estate. Of significance to note is that, the court in the said judgment by Lenaola J (as he then was) dismissed prayer 2 of the application dated 3rd December 1996; the said prayer was to the effect that the confirmed grant be made to the deceased Objector. That course of things was deliberate and portend that a grant ought to have been applied for in accordance with the lawwith notice to all the parties concerned including the Applicant. It seems from the record that application dated 13th October 2009 for appointment of the Respondent as the administrator of the estate was heard and granted on 16. 12. 2009 in the absence of the Applicant. The court however gave good reason why it appointed the Respondent as an administrator- so as not to leave this cause without an administrator. That notwithstanding, the application for confirmation of grant dated 10th February 2012 ought to have been served on all the concerned parties. There is a mandatory requirement of the law that at the hearing of an application for confirmation of grant, the court should hear all the parties concerned including any other person interested, whether such persons appear personally or by advocate or by a representative. See rule 41 of the Probate and Administration Rules. From the record, the Petitioner was not present on 5th December, 2012 when the grant herein was confirmed. The record shows that the Petitioner was absent when material orders were made in favour of the Respondent. Accordingly, I agree with the Applicant that there was no service ofnotice for the hearing of confirmation of grant. I have not seen any affidavit of service to that effect. As such, it is apparent that she was not involved in the proceedings where the grant was made and confirmed. Such is a violation of the rule of natural justice.

[5] Other important considerations include the fact thatthe only surviving daughter of the deceased died in 2003. And the Applicant and the Respondent are not direct descendants of the deceased or the daughter of the deceased; both are descendants of M’AMBUTU, the brother to the deceased. In addition, the Applicant is in occupation of the estate property and that she is entitled to enter the cause and prove whatever claims she may have. She is staking entitlement of the estate property. She is also already a party in these proceedings. In such situation, she is perfectly entitled to be heard during confirmation of the grant. Despite the fact that she committed acts of intermeddling, by not involving the Applicant in the proceedings for confirmation of grant, cardinal rules of natural justice were violated. Thus, the grant made to the Respondent was materially vitiated; was obtained through concealment of this material fact. It is, therefore, a candidate for revocation and I revoke the grant issued to the Respondent. However, as the circumstances of this case calls for prudence, I will exercise my discretion under Section 66 of the Law of Succession Act which provides that:

“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors:

Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”

And accordingly make a grant of letters of administration to the Applicant and the Respondent who shall become joint administrators of the estate. From the nature of their claims, these parties may not be able to make a joint application for confirmation. I direct that the Respondent shall file and serve upon the Applicant an application for confirmation of this grant within 21 days. And on such service, the Applicant shall file an affidavit of protest within 21 days thereof. I also direct cancellation of all entries made in the Register of NO. NYAKI/MULATHANKARI/551 pursuant to the grant I have revoked and the land shall now revert back into the name of the deceased, NGARUTHI MBOGORI until this cause is determined. Finally, I order an inhibition to be registered upon the estate property thereof. In view of the orders I have given, I have deliberately avoided to discuss some of the averments of parties for they should be best determined at the hearing of confirmation of grant. It is so ordered.

Dated, signed and delivered in open court at Meru this 2nd day of October 2017

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F. GIKONYO

JUDGE

In the presence of:

Mrs. Kaume for applicant/petitioner

Petitioner – absent

Kirimi for Respondent

Respondent - present

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F. GIKONYO

JUDGE