[2016] KEHC 2391 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

SUCCESSION CAUSE NO 878 OF 2013

(FORMERLY NYERI HC SUCCESSION CAUSE NO 72 OF 2012)

IN THE MATTER OF THE ESTATE OF MWANGI KAMBOGO, DECEASED

GICHOHI MWANGI……………………ADMINISTRATOR/APPLICANT

VERSUS

SIMON IRUNGU JOSHUA………………………...…………PROTESTOR

1. A grant of letters of administration intestate herein was made at the High Court, Nyeri on 26/04/2012 to Gichohi Mwangi, though the grant was issued in the wrong form as a grant of letters of administration ad litem. It is deemed that the grant issued was a grant of letters of administration intestate as had been sought in the petition filed on 31/01/2012. The cause was subsequently transferred to this court.

2. The Administrator, the aforesaid Gichohi Mwangi, then applied by summons filed on 03/12/2013 for confirmation of the grant. That application is the subject of this judgement. At paragraph 5 of his supporting affidavit the Administrator set out the names of the Deceased’s survivors; his proposals for distribution are at paragraph 6. A consent in Form 37 dated 03/12/2012 and duly signed by all the named beneficiaries in the presence of an advocate was filed together with the summons for confirmation.

3. On 27/11/2014 the Protestor herein, Simon Irungu Joshua, filed an affidavit of protest objecting to the Administrator’s proposals for distribution. In the affidavit he deponed, inter alia, that the Deceased herein, Mwangi Kambogo, was brother-in-law to his mother, Ruth Wambui Nga’ng’a “who died intestate on 04/02/2013”, and that therefore the Deceased was his step-father.

4. The Protestor has further deponed –

(i) That he has a limited grant ad litem under section 54 of the 5th Schedule to the estate of his late mother.

The same is annexed to the affidavit of protest and is limited to purposes only of filing or defending suit.

(ii) That the Administrator has brought the present cause in bad faith in that “he is very much aware that there is still another pending succession cause before the Nyeri High Court, and which matter was at the final stage of conclusion, letters of administration (therein)…having been jointly issued to the (Administrator) and the late Ruth Wambui Ng’ang’a”.

The Protestor does not seen to know that this is the very Nyeri High Court Succession Cause No 72 of 2012 that was transferred to this court.

It is also not factually true that grant was issued at Nyeri jointly to Gichohi Mwangi and Ruth Wambui Ng’ang’a. The grant was issued to Gichohi Mwangi alone.

(iii) That he is totally opposed to the Administrator’s proposals for distribution in that save for Lucia Therero Ndirangu he has “brought total strangers” as beneficiaries with the intention of disinheriting the Protestor and others.

(iv) That he and his siblings, and his aforesaid mother before him, have been in quiet possession of the land, and that the Administrator and the other beneficiaries he has named have never been in occupation of any portion of the Deceased’s land.

(v) That he therefore counter-proposed that the Deceased’s land be shared between him and his siblings as set out at paragraph 8 of his affidavit of protest.

5. No response to the affidavit of protest appears to have been filed by the Administrator.

6. On 15/07/2015 learned counsel for the Administrator pointed out that the Protestor’s claim as set out in the affidavit of protest was based on trusts. He was of the view that no oral evidence would be necessary as this succession court cannot deal with such a claim. He requested to put in written submissions. There was then no appearance for the Protestor despite service. The court directed that the protested summons for confirmation of grant be disposed of by way of written submissions, to be highlighted as may be necessary.

7. The Administrator filed his written submissions on 11/05/2016 through his learned counsel. The protestor never filed any.

8. Learned counsel for the Administrator stated in the submissions that it was not in dispute that the Protestor’s father was a brother of the Deceased. He also pointed out that the Protestor’s claim in the Deceased’s land was based on occupation and implied trusts. It was counsel’s submissions that the Law of Succession Act, Cap 160 does not envisage the resolution of claims based on trusts and adverse possession. He also referred the court to Rule 41(3) and (4) of the Probate and Administration Rules. He sought dismissal of the Protestor’s claim as the same cannot be adjudicated in these succession proceedings.

9. Succession proceedings, by their nature and design under the Law of Succession Act, are very limited, with the aim of expeditious disposal, leading to due distribution of a deceased person’s estate. The mandate of a succession court is precise and limited – to determine the persons beneficially entitled to a deceased person’s estate and their respective shares therein. There are various formulas set out in the body of the statute to determine who such beneficiaries would be and their shares of the estate.

10. The Law of Succession Act and the Probate and Administration Rulesmade thereunder do not envisage at all the adjudication, in succession proceedings, of potentially complex claims in land based on trusts, adverse possession or contracts, without the benefit of proper and adequate pleadings, and without due regard to other laws, for instance the Limitation of Actions Act and the Land Control Act. Such claims belong in a civil court by properly instituted proceedings.

11. To allow these claims to be brought in succession proceedings, often many decades after periods of limitation have lapsed and without due regard to other laws, is to permit lawlessness by abuse of court process, allowing claims to fester for generations. This should not be permitted.

12. The Protestor’s claims clearly belong in a civil court, not in these limited succession proceedings. I will however, prior to confirming the grant as sought by the Administrator, accord to the Protestor an opportunity to institute such civil proceedings as he may deem appropriate in which to pursue his claim in the Deceased’s land. He will have 60 days from the date of delivery of this preliminary judgement to institute such proceedings.

13. A date for mention of this matter shall be given at the time of delivery of this preliminary judgment when further directions or final judgment, as the case might, shall be given. It is so ordered.

DATED AND SIGNED AT MURANG’A THIS 22ND DAY OF SEPTEMBER 2016

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 23RD DAY OF SEPTEMBER 2016