[2017] KEHC 2629 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

SUCCESSION CAUSE NO. 4 OF 2015

(FORMERLY MERU SUCC. CAUSE NO. 132/2014 CHUKA SUCC.CAUSE NO. 154/2012)

IN THE MATTER OF THE ESTATE OF JOSEPH NYAGA KARIMA-DECEASED

AND

DOROTHY GITONGA...........................................INTERESTED PARTY

VERSUS

JOSEPH RUGENDO NJERU....................................1ST RESPONDENT

JEDIDAH RUGENDO NJERU..................................2ND RESPONDENT

GRACE NYARUAI NGIGI.........................................3RD RESPONDENT

R U L I N G

1. Before this court is the summons for revocation of grant dated 19th November, 2013, taken out by Dorothy Karimi Gitonga the applicant herein. The said application relates to the estate of the late JOSEPH NYAGA KARIMI(deceased) who died intestate on 5th April, 1980. Joseph Rugendo Njeru, a grandson to the deceased was appointed the administrator of the estate of the deceased herein on 25th June 2012 and had the said grant confirmed on 2nd April, 2013 vide Chuka Chief Magistrate’s Court Cause No. 154 of 2012. The estate in this cause comprised that property known as KARINGANI/MUGIRIRWA/189. The same upon confirmation of grant was subdivided into L.R. No. KARINGANI/MUGIRIRIWA/3159, 3160, 3161, 3162, 3163 AND 3164.

2. The grounds upon which the summons for revocation of the said grant has been made are as follows namely:-

a)The grant was confirmed without the consent of all the beneficiaries.

b)That the grant did not cater for all the beneficiaries

c)That the applicant’s signature was forged.

d)That the grant was obtained through concealment and untrue allegations.

3. The summons was supported by the affidavit of the applicant sworn on 19th November, 2013 where in summary, the applicant faulted the 1st respondent, the administrator for forging her signature signifying that she had consented to the confirmation of grant. The applicant has further faulted the 1st respondent for including strangers (2nd and 3rd respondents respectively) as beneficiaries when the two in her view was not entitled to any share of the estate. She has pointed out that the appointed administrator omitted EDWARD MUTEMBEI MBAKA from the list of beneficiaries yet he was beneficiary.

4. At the hearing of the application Robert Mugambi M’Arithaa (PW1) a grandson to the deceased herein testified that the deceased herein died and left the following surviving him.

(i) M’Arithaa Kanampiu (now deceased) - son

(ii) Mary Beth Ciarigiri (deceased) - daughter

(iii) Njeru Kanampiu - son

(iv) Kagendo Kanampiu - daughter

(v) Mbaka Kanampiu - son

He further told this court that the appointed administrator herein also a grandson to the deceased and a son to NJERU KANAMPIU- a son to the deceased. He faulted the chief’s letter for listing the 2nd and 3rd respondents respectively as children of the deceased when they were not. The witness further testified that the deceased had gifted his sons other parcels of land and left the property comprising the estate with instructions that the grandsons named after him should inherit the same. He named the following as the grandsons named after the deceased.

a) Gitonga Nduru

b) Rugendo Njeru

c) Mutembei Mbaka

d) Elias Mwenda

According to him, each of the above grandson were shown their respective shares and because they were still young, their respective parents took possessions of their respective shares in trust for them and that each of them now are in occupation of their respective shares. He further added that GITONGA NDURU (now deceased) was husband to DOROTHY KARIMI GITONGA (now deceased as well) the named applicant herein and that the deceased got a share in the estate.

5. Dorcas Gathoni, was appointed by this court on 10th October, 2016 to replace the deceased applicant herein, and in her written submissions done through Ms A.G. Riungu & Co. Advocates, she has contended that the administrator sold portions of the estate of Jedidah Ciagitari Rweria and Grace Nyaruai Ngigi, the 2nd & 3rd respondents respectively. It is contended that the sale was illegal because the sale transaction took place before the grant was confirmed.

6. The respondents have opposed this application through the replying affidavit of Joseph Rugendo Njeru sworn on 7th April, 2014 and the written submissions through learned counsel Ms Basilio Gitonga, Murithi & Co. Associates. The 1st respondent has deposed that the deceased herein was his grandfather and agreed with the applicant that the deceased left behind five children namely:-

a) Nduru Kanampiu (deceased)

b) Ashford Njeru Kanampiu

c) Beth Ciarwigi (deceased)

d) Mbaka Kanampiu and

e) Kagendo Kanampiu

The first respondent has also conceded the averments by the applicant that the estate was left behind to be subdivided among the grandson of the deceased who were named after him. He has further deposed that the sons to the deceased were given their own portions by the deceased and that the daughters of the deceased were married and were not interested in a share in the estate. He has denied not involving other beneficiaries claiming that all were aware of all the steps he took in the petitions for letters of administration and the administration of the estate of the deceased. He has justified the proposed mode of distribution adopted by this court stating that the 2nd and 3rd respondent purchased 0. 36 acres from the estate to facilitate filing of succession and subdivision of the property.

7. The respondents have further denied the applicant’s contention that she was not involved contending that she was present in court during confirmation of grant.

8. In their written submissions, the respondents have faulted the applicant for lacking locus/capacity to bring this applicant claiming she did not fit the description assigned to dependants under the provisions of Section 29 (b)of the Law of Succession Act. They have also faulted Dorcas Gathoni contending that she has not shown that she has legal capacity to either represent her late mother or father in this cause. They have cited the case of RE-ESTATE OF JOSEPH MWEU NZAU (deceased) [2017] eKLR to support their contention in this regard.

9. The respondents have further contended that the applicant has not proved the facts she is relying on this application as she did not personally testify, and instead choosing to support her claims through the evidence of one Robert Mugambi Rithaa (PW1). In their view, the said witness stated that he was not interested in the share of the estate. It is also contended that the witness did not rely on the initial affidavit sworn in support of this application.

DETERMINATION

10. This is an application brought under Section 76 of the Law of Succession Actwhich provides grounds upon which this court at the application of any interested party or on its own motion can revoke/annul a grant whether confirmed or not.

The respondents have not challenged the grounds upon which this application have been made instead they have attacked the capacity of the applicant to make this application saying that she is not a dependant within the meaning ascribed to a dependant under Section 29 (b) of the Law of Succession Act. They have also suggested that the substitution of the initial applicant by Dorcas Gathoni was irregular since she did not establish her legal capacity to represent her late mother (Dorothy Karimi Gitonga).

11. This court has gone through the record of proceedings in this cause and noted that the court in its exercise of discretion the court substituted the late applicant (Dorothy Karimi Gitonga) with DORCAS GATHOMI GITONGA on 10th October, 2016. That substitution has not been contested by any party including the respondents who were duly represented in court during that substitution. This ofcourse is not to say that a party wishing to represent the estate or the interest of a deceased person is not required to abide by the law as held in the cited case of RE- ESTATE OF JOSEPH MWEU NZAU (DECEASED) [2017] eKLR. Far from that. A party who wishes to take over proceedings in any court from a deceased persons must obtain letters of administration either limited or full grant as provided for under Law of Succession Act.

12. I am also not persuaded by the argument that only dependants as described under Section 29 of the Act can move the court under Section 76 of the Act. This is because Section 76 clearly states that “an interested party” can move the court. The court can also on its own motion revoke the ground if any of the grounds cited under that section obtains which they do in this cause.

13. In the first place, the Petitioner in form P&A5 described himself as ‘son’ of the deceased. In his replying affidavit sworn on 7th April, 2014 at paragraph 4 he gave the names of all the children of the deceased and when contrasted with the initial information given in his affidavit (P&A5) in support for letters of administration sworn on 8th May, 2012, one can clearly discern that the 1st respondent/administrator clearly concealed some material facts to court. None of the children to the deceased were disclosed by the petitioner when he first came to court for unknown reasons but what is apparent is that the facts presented to court were misleading.

14. Secondly, the monetary value of the estate given by the petitioner in Form P&A57 was Kshs.200,000/= which was clearly then beyond the monetary jurisdiction of the magistrates because by a dint of the then Section 48(1) of Law of Succession Act the monetary jurisdiction of magistrates courts was limited to Kshs.100,000/=. The petition should not have been filed in the lower court and the lower court made an inadvertent mistake of entertaining the cause when it was bereft of jurisdiction.

15. Thirdly, I am persuaded by the applicant’s argument that the respondents clearly acted contrary to the provisions of the law (Read Section 82(b) Law of Succession Act) by purporting to engage in a sale agreement on a portion of the estate before the grant was confirmed. They also misled the court by listing themselves as dependants in form P&A5 or the petition for letters of administration. The 1st respondent admitted as much in his evidence. That in my view was an untrue allegation notwithstanding the fact that the same may have been made innocently or in ignorance but whatever the case the respondents had no justification whatsoever in so doing and had that information came to the knowledge of court, the grant would not have been made or confirmed in the manner it was.

On those 3 grounds this court finds that there are sufficient grounds to revoke the grant issued on 25th June 2012 and confirmed on 2nd April, 2013 and I hereby on court’s own motion revoke/anull the said grant and reverse all subdivisions effected on land parcel No. KARINGANI/MUGIRIRWA/189. I direct the Land Registrar Tharaka Nithi to forthwith cancel all resultant titles to wit parcels KARINGANI/MUGIRIRWA/3159, 3160, 3161, 3162, 3163 and 3164.

I also exercise my direction and do appoint Njeru Kanampiu, a son to the deceased, as the administrator of the estate of the late Joseph Nyaga Karima. There is no reason why a grandchild should be appointed the administrator in this cause when the children of the deceased, even if they have no interest in the estate, are alive. Under the provisions of section 66 of Law Succession Act they have preference to administer the estate over grandchildren. The appointed administrator is required to administer the estate in accordance with the law and in view of the age of this cause, I grant liberty to the administrator to apply for confirmation of the grant before the expiry of the statutory period (6 months). I shall make no order as to costs at this stage.

Dated and delivered at Chuka this 9th day of October, 2017.

R. K. LIMO

JUDGE

9/10/2017

Ruling signed, dated and delivered in the open court in the presence of Murithi for respondents (present in court) and Robert Mugambi.

R.K. LIMO

JUDGE

9/10/2017