[2017] KEHC 2942 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

SUCCESSION CAUSE NO. 364 OF 1993

IN THE MATTER OF THE ESTATE OF THUO GATHURU (DECEASED)

1. G G T

2. MARY WANJIKU THUO

3. GODFREY WANG’ANG’A THUO…..APPLICANTS

VS.

GEORGE GATHURU KARANJA……..RESPONDENT

JUDGMENT

1. Thuo Gathuru alias Thuo Gathuru hereinafter referred to as the deceased died on the 9th April 1990. On the 5th March 1992 George Gathuru Karanja and Godfrey Wanganga petitioned for a grant of petitioner for Letters of Administration Intestate. The grant was confirmed on the 24th March 1995 and amended on the 30th July 2003. As per the certificate of confirmation of grant amended on the 30th July 2003, the beneficiaries were listed as;

i. Mary Wanjiku Thuo

ii. G G T

iii. George Gathuru Karanja

iv. Godfrey Wanganga Thuo

On the 2nd October 2014 the applicants G G T, Mary Wanjiku Thuo and Godfrey Wang’ang’a Thuo, filed a Summons for Revocation of grant under Section 76 of the Law of Succession Act Cap 160 Laws of Kenya and Rules 44 (1) and 73 of the Probate and Administration Rules seeking the following orders;

i. That the grant of letters of administration issued on 24th March 1995 and amended at Nairobi on 30th July 2003 be revoked.

ii. That this pending hearing and determination of this summons for revocation of grant this Honorable court be pleased to order a stay of transfer of the assets of the deceased as held by the respondent.

iii. That pending hearing and determination of this summons for revocation of grant this Honourable court do issue an order stopping the respondent herein from interring his deceased son one Isaac Karanu Gathuru on any of the properties mentioned in the grant herein.

iv. That this Honourable court be pleased to make any further order that may help to preserve the estate of the deceased pending hearing and determination of this application.

The application was premised on the following grounds;

a. That grant of letters of administration was obtained by the respondent who failed to disclose material facts.

b. That the respondent has been meddling with the estate of the deceased and is in the process of interring his recently deceased son.

c. That the 1st applicant has been living in abject poverty yet he is the son of the deceased.

2. The application was supported by the affidavits of the applicants filed in court on the 2nd of October 2014. The 3 affidavits state the following; the deceased was the father of G G T who was a minor at the time of filing the present succession cause, that his mother Pauline Njeri passed immediately after the demise of his father leaving an orphan at an early age of seven. The deceased had two wives Pauline Njeri the 1st applicant’s mother and Mary Wanjiku Thuo. Upon the demise of the parents of George Thuo his uncle took care of him. His step mother Mary Thuo and his uncle decided that his step brother Godfrey Wanganga Thuo and George Gathuru Karanja be co administrators of his father’s estate and to hold the assets in trust until he acquired the legal capacity. George Thuo’s parents left behind the following assets;

i. Land Reference Number Gatamaiyu/Kagaa/78

ii. Land Reference Number Gatamaiyu/Kagaa/299

iii. Land Reference Number Gatamaiyu/Kagaa/T251

iv. Land Reference Number Gatamaiyu/Gagaa/T299

v. Land Reference Number Gatamaiyu/Gagaa/T300

vi. Residential House Nairobi City Council

vii. Shares in Jubilee Insurance Company Ltd

viii. Funds in Kenya Commercial Bank A/C No [particulars withheld] Githunguri

ix. Shares in KGGCU

x. Kiambu DPFCU LTD A/C 635-02-566

xi. Shares and Number in Kamahia Farmers Jakwa 841

xii. Saving and credit funds in Kagaa Catholic Church

xiii. Group contributions in Karigo-Igaga whose funds are in KCB Githunguri.

3. That in consideration George Karanja was allowed to have shares in Thome Farmers No. 4 LTD as well as to utilize crops on the suit properties to educate and take care of G T. However Goerge Karanja chased George Thuo from the house left by his parents and the latter went to stay with his uncle. George Karanja then proceeded to transfer the properties left by his parents into his name, which properties were not included in the application for confirmation of grant. The said properties were; Land Reference Numbers Gatamaiyu/Kagaa/78, 299 and T.299. George Thuo was given parcel No. T.300. Efforts to have the properties returned to G T were to no avail despite enlisting the help of the area chief. According to Mary the properties mentioned were to be held in trust for G G T by the Respondent. The properties bequeathed to her by her late husband were; Land Reference number Gatamaiyu/Kagaa/T22, Land Reference Number Gatamaiyu/Kagaa/162 and Land Reference Number Gatamaiyu/Kagaa/T 315. Godfrey Wanganga Thuo in his affidavit collaborated the evidence of George Thuo and Mary Thuo.

4. The respondent George Gathuru Karanja in his affidavit dated 17th April 2015 filed on the same day depones as follows; That Godfrey Wanganga in his affidavit does not allege any fraud committed by him or making of a false statement or concealment of any material facts at the time of taking out of the grant. That Godfrey has always been aware of the manner of they distributed the estate at the time of confirmation of the grant and does not allege he was misled, that Mary consented to them taking out the grant. That from reading the affidavits of Godfrey and Mary they are under the erroneous assumption that the proceeding herein relate to the estate of Pauling Gathuru (deceased) as shown in the hand written and dated copy of Pauline’s wishes annexed to the affidavit. That Pauline had no powers to will out the estate that do not belong to her. That the 3rd applicant who is his co-administrator knowing and voluntarily executed all necessary land and transfer documents and obtained all the necessary consents to facilitate the transfer and vesting of the respective shares of the estate to the beneficiaries in accordance with the certificate of confirmation of grant which he now strangely seeks to revoke. That the 2nd and 3rd applicants have joined in the Summons for Revocation as an afterthought and after the inordinate delay of a period of more than 20 years since their voluntary and informed participation in the confirmation of grant including the subsequent amendment of the Certificate of Grant. That he knows as a fact that the 1st applicant is not the son of the deceased or even the biological son of the said Pauline Njeri Thuo (deceased) and that the deceased and Pauline Njeri Thuo (deceased) did not bear any children of their own let alone the 1st applicant. That the said Pauline Njeri Thuo took the 1st Applicant into their home from the streets of Nairobi and assumed full parental responsibility over him and they did not formally adopt him as their son but for all purposes and intent they regarded and treated him as such hence his inclusion in the petition for the grant. That the birth certificate annexed to the 1st applicant affidavit is a false document acquired to mislead the court on the relationship between the 1st applicant and the deceased. That it was the wish of the deceased that the estate be distributed in the manner in which it was done. He inherited the shares because he was the one living with the deceased and taking care of him during his last days after Pauline Thuo run away from the home. That the mentioned funds, shares in Jubilee Insurance Company Ltd and funds in Kenya Commercial Bank A/C No. [particulars withheld] Githunguri, were shared between the 3rd applicant and himself to educate and bring up the 1st applicant. That the following accounts and shares did not have any funds by the time of filing the grant namely; Shares in KGGCU, Kiambu DPFCU LTD A/C 635-02-556, Shares and number in Kamahia Farmers Jakwa 841, Savings and Credit funds in Kagaa Catholic Church and Group contribution in Karigo-Igaga whose funds are in KCB Githunguri. The residential House Nairobi City Council, Maringo Estate is not part of the estate of the deceased the same having been transferred to him by the deceased sometime in 1983. That he brought up the 1st applicant until his adult age having followed his uncle’s wish and the 1st applicant moved out of their home willingly, that it is not true that he living in destitution. That Land parcels Numbers Gatamaiyu/Kagaa/T 299 and 78 have title deeds already issued with his name since they were bequeathed to him by the deceased and were included in the confirmation of grant. However Land reference number Gatamaiyu/Kagaa /T251 is still under the deceased names owing to the fact that the deceased had loaned the Title deed to one of his friends one John Kamau Miano to hold as security by the time of taking out the grant.

5. A further affidavit was filed by Godfrey Wanganga Thuo on 9th December 2016. He depones that as a co-administrator he knows that it was agreed among family members that the respondent hold the position as co-administrator in a fiduciary position for the 1st applicant G T who was a minor at the time. That he is not aware of the distribution of the estate and that this was only brought to his attention when the 1st applicant sought to claim what was in his inheritance. That at one time the respondent approached him and informed him that he misplaced the title deed to Gatamaiyu/Kagaa/T251 and requested that they swear a joint declaration since they were co-administrator. That the wishes of the deceased were read out before competent witnesses and it is the said wishes they are attesting to. During his life time he has known that the 1st applicant is the deceased’s son. That he reiterates that some of the properties were not listed. That it is not true that the accounts did not have funds as alleged as there has been no demonstration of the same and they never shared the funds as alleged as the respondent had the sole control and has adduced the position of trust bestowed on him. He reiterated his earlier averments deponed his application in support of the application.

6. The matter proceeded by way of viva voce evidence. Parties adopted their affidavits and were cross-examined on the same. During cross-examination the 1st applicant stated that the deceased and Pauline are not his biological parents but brought him up. The 2nd applicant in cross-examination stated that they were in court because the 1st applicant was not given anything. The 3rd applicant too stated that the 1st applicant should be given his father’s property as he is of age. He recalled that a meeting was held after the deceased’s death and his will was read. That Karanja brought up G T and he did not take up the responsibility of George. The respondent too adopted his replying affidavit. In addition he testified in court that when the deceased become unwell he expressed his wish to leave his house in order and before one Doctor Gacheru Kuria the deceased told him how to distribute the estate. That he never saw the wishes of Pauline in paper. That George never told him that he wanted his father’s properties that all along he lived with George as his child. That they agreed with Wanganga on how to administer the estate. During cross-examination he admitted that the deceased is his uncle and that his father stays in Molo and still alive. That when they went to court they had no written consent but they had agreed. He denied holding the property in trust for the 1st applicants and stated that the deceased raised him hence his right to the property. DW2 Doctor Samuel Kuria testified that he knew the deceased and that the deceased went to him for treatment at Kenyatta National Hospital. That a day or two before the deceased died he was with him together with Gathuru, his nephew and brother Karanja. The deceased requested to be left with him and Gathuru. The deceased asked George Kathuru Karanja to have the property divided, one piece to go to the 2nd wife and the other Gathuru to take charge of and also to ensure that the adopted boy was taken care of. By then Pauline was terminally ill and she passed on 6 months later. According to him the deceased was mentally stable. That George did not acquire the land illegally as he was told to take care of the ailing mother and the property. During cross-examination he stated he had no interest in the deceased property that he found it unusual that the deceased asked the other two persons to leave before he pronounced his wishes. He knew that the deceased was close to his nephew. The deceased did not put the respondent in a position of trust.

7. Parties filed written submissions which I have read and considered. The issues raised by the applicant are;

i. Was there failure to disclose material facts during the obtaining of the grant and its subsequent amendment?

ii. Is there a breach of fiduciary duty?

iii. Has the respondent proceeded diligently with the administration of the estate?

iv. Has the respondent produced an accurate inventory or account to court that is satisfactory?

v. Is it in the interest of justice that the grant presented to be revoked?

On failure to disclosed material facts it was submitted that the respondent admitted that the deceased wanted his property divided between the two wives and sons and that he educates the 1st applicant, however the respondent omitted the fact that he held the property in trust. That under Section 40 of Cap 160 upon the death of Pauline Njeri the 1st applicant would have inherited her estate. Reliance was made on in the case of the estate of Wahome Mwenje Ngonoro deceased (2016) eKLR.It was further submitted that because the respondent does not even believe that the 1st applicant should have a share in the estate of the deceased that was proof enough that he knowingly deceived and misled the other co-administrator and the whole family will clear intentions of disinheriting the 1st applicant. That the respondent did not act in good faith at the time of rectifying the grant as the respondent did not obtain the consents of other beneficiaries which would have included the respondent who was of age then. That the applicants were not aware of the subsequent of grant and transfer of property to the respondent’s name. According to the applicants the respondents does not fall in the hierarchy of beneficiaries under the order of priory of succession provided under Section 39 of the Act.

On breach of fiduciary duty it was submitted that the respondent is a nephew of the deceased and that since his father is still alive is entitled to inherit his father’s estate. That the respondent transferred properties that were supposed to be held in trust on behalf of the 1st applicant to his name, thus breaching his fiduciary duty entrusted by the family and by the grant. The applicant relied on the case of The Estate of T. N. N (deceased) (2014) eKLR where Justice Musyoka held that;

“ A trustee stands in a fiduciary position with regard to trust property and the beneficiaries. He holds the property for the benefit of the beneficiaries rather than for his own benefit. He should not act in a manner which prejudices the interest of the beneficiaries. In this case the trustee has clearly acted against the interest of the beneficiary by causing the trust property to be registered in his own name as absolute proprietor and for selling trust property without recourse to the court which constituted him trustee over the property.”

It was submitted that there was no limitation as to the time of filing summons for revocation of the grant. On administration of the property it was submitted that the respondent has not administered the estate properly. That under Section 37 the surviving spouse of the deceased who is the 3rd applicant is entitled to a life interest in the deceased’s property and not the respondent. That any transfer of the property without regard to Section 37 is intermeddling as was held in the case of, the Estate of Peter Kagia Wakahenya Succession Cause No. 1291 of 2015. That the respondent should have furnished the court with an accurate inventory of how he has administered the estate and that the respondent failed to show that there was no funds in the said accounts. It was further submitted that the respondent failed to list the shares in his application for confirmation of the grant and that having failed to do so the grant should be revoked. The applicants cited the case of Matheka and another vs. Matheka (2005) 1 KLR pg 456where the court held that a grant may be revoked if it can be shown to the Court that the person to whom the grant was issued failed to produce to the Court such an inventory or account of administration as may be required.

8. The Respondent submitted on the undisputed common grounds stated the applicant’s case and the Respondent ‘s on legal arguments submitted as follows; On whether the grant should be revoked it was submitted that the 2nd and 3rd Applicants actively participated in the applications for grant. That the facts were never disputed by them and the process of obtaining the grant was without fraud and no material fact was concealed. The 2nd and 3rd applicants signed the documents, that the deceased expressed his wish on how the properties were to be shared and entrusted the distribution of the property to the Respondent whom he treated as a son and was the closest to the deceased. That he has demonstrated that the documentary evidence that the deceased gifted him his residential house. The Respondent relied on Section 39 to support this argument. On the 1st Applicant status as a son it was submitted that the 1st Applicant was adopted informally without legal adoption proceedings. That if the court finds he is entitled to more shares parcel No. T 300 has already been earmarked for him and what the court should order is a rectification of the grant instead of revocation. The Respondent urged the court not to revoke the grant as the applicants have failed to prove the grant stated under Section 76 of CAP 160.

DETERMINATION

9. The issues for determination is whether the grant that was issued on 24th March 1995 and amended on 30th July 2003 should be revoked. The Applicants have moved the court under Section 76 which provides for grounds of revocation. The applicant’s main ground is that the Respondent failed to disclose material facts and that he intermeddled with the estate of the deceased. From the evidence adduced the issue that arose was that the Respondent was left the deceased property in trust for the 1st Applicant. The 1st Applicant is named as the deceased’s son in the petition that was filed in court in March 1992. At the time of filing the petition the 1st Applicant was 8 years old. The Respondent did disclose he was the Deceased’s son. It is not in dispute that the deceased and his late wife Pauline brought up the 1st Applicant as their child. According the Law of Succession Act a child includes a male person whom he has expressly recognized or in fact accepted as his own or for whom the deceased voluntarily assumed permanent responsibility. The Respondent argues that being an adopted child the 1st Applicant does not rank him priority as he was not blood relative. In my view this argument is wrong as the deceased recognized the 1st Applicant as his own child and he assumed permanent reasonability for him and therefore entitled to the late deceased estate. The fact that the deceased and his wife did not legally adopt him does not exclude from the definition of child as stated in the Law of Succession Act.

10. The next issue is whether the 1st Applicant is entitled to the properties that were listed by the Respondent and the 3rd Applicant. From the evidence adduced by the Applicants they claim that the Respondent was left to hold the properties in trust for the 1st Applicant and his deceased mother. The Respondent denies this and claims that the properties were left to him as the deceased took him in as a son. It is evident that the deceased left the 1st Applicant and his mother Pauline under the care of the Respondent his evidence was also stated by the Respondent’s witness. This evidence demonstrates that the Respondent was to hold the property in trust. I associate myself with the holding of Justice Musyoka in the case of the estate of TNN ( Deceased) ( supra) where he held that “ a trustee stands in fiduciary position with regard to trust property and the beneficiaries. He holds the property for the benefit of the beneficiaries rather than for his benefit. He should not act in a manner which prejudices the interest of the beneficiaries” . The Respondent’s argument that everything was left to him is not persuasive. Am persuaded that he was to hold the properties in trust for beneficiaries the 1st applicant and Pauline who later passed on. The deceased’s 2nd wife the 2nd Applicant stated that her late husband wanted the properties divided between the two houses. It could be that the deceased did reward the Respondent during his life time having cared for him, by giving him the property at Maringo but I am not convinced that all the other properties were entirely left for his own benefit. The 2nd and 3rd Applicant appear not to have been fully involved in the administration of the estate due to the trust they had in the Respondent and allowed him to deal with the matter in court. In my view the Respondent ought to have included the 1st Applicant in the subsequent application after he become of age. He failed to do so. To argue that the application is an afterthought is not correct. The 1st Applicant is entitled to the properties the deceased .

11. Under Section 76 of the Law of Succession Act Cap 160, the court has discretion to revoke the grant. Having considered the evidence I find it not appropriate due to the relations of the parties to revoke the grant but to amend the grant and appoint the 1st Applicant as a co-administrator to the Respondent and the 3rd Applicant. The properties that are left for distribution are the parcels of land that are listed in the certificate for confirmation dated 30th July 2003. The 1st Applicant claims he is entitled to Gaamaiyu/Kagaa/299, 78 and 251. He was named as a beneficiary to parcel No. T300. On the other properties listed in the petition the Respondent’s evidence is that the shares did not have any funds by the time of filing the grant. This evidence was not rebutted by the applicants. The Respondent also said whatever money they received was used for the upkeep of the 1st Applicant. The Respondent does not deny that he is not the son of the deceased but a nephew. Parcels No. T299 and 78 are already in his name. Parcel No. T251 is still under the deceased’s name. After considering the evidence, I find that the Respondent has not persuaded the court that he is entitled to the said properties solely. The 1st Applicant being the deceased’s son is entitled to the said properties. However because he took care of the deceased he could have been entitled to a reward which he received during the deceased’s life time. The 1st Applicant being the son of the deceased is entitled to the properties left in the deceased’s name. The Respondent shall transfer the properties in his name which belonged to the deceased to the 1st applicant. Parcel No. T251 is also awarded to the 1st Applicant. Each Party shall bear his own costs. It is so ordered.

Dated, signed and delivered this 2nd day of October 2017

R. E. OUGO

JUDGE

In the presence of:

Mr. Kinyanjui h/b for Mr. Wambugu For the 1st, 2nd and 3rd Applicants

Mr. Gikonyo For the Respondent

Ms Charity Court Clerk