[2017] KEHC 2396 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 252 ‘A’ OF 2012

IN THE MATTER OF THE ESTATE OF THE LATE MARIETA IMATHIU (DECEASED)

GLORY KITHIRA RIMIRI …………………….....….……………............. PETITIONER

-VS-

TERESIA WANJA NABEA ......................................……… OBJECTOR/OBJECTOR

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RULING

Revocation of grant

[1] On 19th July 2016 Mr. Anampiu, counsel for the Objector, erroneously, albeit inadvertently, told the court that the application for revocation of grant is dated 19th July 2016. But the application which was coming up for hearing on 19th July 2016 and in respect of which this decision relates is the one dated 6th May 2015. Directions were given that the said application shall be canvassed by way of written submissions and affidavit of parties. The significant order sought in the said application dated 6th May 2015is annulment and or revocation of the grant issued herein.The application is made by way of chamber summons under Section 71 (2) and 76 Law of Succession Act and Rule 44 of the Probate and Administration Rules CAP 160 of the Laws of Kenya. The application is grounded on the affidavit of TERESIA WANJA NABEA and on the grounds that:

1. The Petitioner herein filed this petition secretly.

2. The Petitioner did not seek the consent of the Objector when distributing the estate and did not provide for her despite her being a beneficiary.

3. That the grant was obtained by fraud and by concealment of vital facts.

Objector’s case

[2] In her affidavit dated 6th May 2015 the Objector deposes that she is the wife of one M’MUGWIKA M’IMATHIU a son of the Deceased. She also submitted that her late husband died and left her on the Land Parcel; was also buried on it together with their child. She has been occupying ½ acre which she has extensively developed. She was surprised when people accompanied by the Petitioner started fencing off the land and blocking road of access. On investigating, she found out that the Petitioner had filed this cause secretly without her involvement and had distributed the land leaving her landless. She affirms that the Petitioner committed serious perjury in court by stating in the distribution that JANE KAMONGO is a minor when she is over 45 years and should be brought to court to verify this. The Petitioner failed to include her in the distribution yet she brought a total stranger one MARY WAIRIMU NDIRI who has been included as a beneficiary. She claimed that the Petitioner has no priority over her in the estate of the Deceased as she is just a distant relative and was not among the beneficiaries listed in the chief’s letter (annexure TW 1). After the Chief realized that the beneficiaries name was not included he wrote another letter to the court confirming that she deserved to be included (annexure TW 2). She is now threatened with eviction.

[3] The Objector filed her submissions dated 10th August 2016 which substantially reiterates information in her supporting affidavit dated 6th January 2015. She also filed other submissions dated 21st March 2017 and adds that the Deceased is survived by:

1. FabianoMaitimaM’Imathiu – Son

2. Sabina RegeriaM’Imanyara - Daughter

3. Victo John Koome – Son

4. Jane NkathaMwangi – Grand daughter

5. TeresiaWanjaNabea – Daughter in Law

She submitted that the suit Land should be divided equally among them.

The chief’s letter dated 10th April 2012 stated the beneficiaries of the Deceased as:

1. M’MathiuMabuti (Husband) - Deceased

2. AmariaNcurubi (Daughter) - Deceased

3. M’MugwikaM’Imathiu (Son) – Deceased

4. Sabina RegeriaM’Imanyara (Daughter)

5. FabianoMaitimaM’Imathiu (Son)

6. Maria Makena (Daughter) - Deceased

7. VictorKoome (Son)

8. Jane NkathaMwangi (Grand Daughter)

Note that the way the Objector has quoted the beneficiaries above is not the same way it is stated in the said chief’s letter. She left o6ut one Andrew M’Nkumbuku (Son) – Deceased and writes Jane Kamongoas Jane NkathaMwangi, the granddaughter.

[4] JANE NKATHA MWANGI’s deposed in her affidavit dated 10th March 2017 that she is the granddaughter of the deceased for she is the daughter of Maria Makena, who is the daughter of the Deceased. She is claiming her deceased mother’s share. She deposes that the Petitioner filed the succession cause secretly without involving her and other family members. She states thatthe Petitioner was not the right person to file the cause and should not even be a beneficiary of the estate of the Deceased for she is a distant relative. She proposes that the Land Parcel be shared equally among:

1. Jane NkathaMwangi

2. TeresiaWanjaNabea

3. HabianoMaitimaM’Imathiu

4. Victo John Koome

5. Sabina RegeriaM’Imanyara

[5] She stated categorically that she came to learn of this cause from the Objector and that the Petitioner is not a granddaughter of the Deceased as alleged. When she checked the court file she found that she had been given a ¼ of the land. She avers that she is not a minor since she is currently 45 years hence the assertion by the Petitioner that she is a minor was misleading to this court. She is aware Teresia (Objector) is the wife of M’MugwikaM’Imathiu who is the son of the Deceased and has been in occupation of the land for years after his husband’s death.

Petitioner’s Claim

[6] The Petitioner filed a replying affidavit dated 22nd June 2015 in which she averred that the Objector had a child with M’MugwikaM’Imathiu through an affair but they never got married. After the birth of the child, he was taken by his late father and the Objector immediately got married to another man known as NABEA.She denied that the Objector has developed ½ an acre and made a request that this Honourable Court should visit the scene and verify her claims. According to her, the Objectorhas not been in occupation of that space she claims to have been in occupation; she stated that the Objectorrushed to construct a structure in December 2014 after she learnt of the filing of this cause. But she concurs that M’Mugwika and his child are buried on the land although at the time when they were being buried the Objector was already married to one NABEA and they have three issues of marriage. She claims to be a granddaughter of the Deceased and was approached by the members of the family to assist them in filling this cause to enable them to get title deeds.She therefore denies that she filed this cause secretly since the beneficiaries went to the chief and were given a letter to file this succession. There is no one who is intending to evict the Objector since she has never been in occupation of the Land Parcel apart from the small structure which she erected in 2014 and the Petitioner is surprised of where she has been living for over 40 years. She states that MARY WAIRIMU NDIRI is a purchaser who provided the beneficiaries with money to file succession and the subdivision of the said parcel of land. And that when the chief was writing the further letter to include the Objector as one of the beneficiaries he never involved all the members of the family to ascertain if the Objector was surely a member of the family.

[6] The Petitioner also filed submissions dated 24th March 2017. She argued that the Deceased left behind the following surviving her:

1. FabianoMaitimaImaithiu

2. AmariaNcurubi (deceased)

3. Sabina RegeriaM’Imanyara

4. Maria Maken (deceased)

5. M’NkumbukuM’Imathiu (deceased)

6. VictorKoome

7. M’MugwikaM’Imathiu (deceased)

According to her, the Objector omitted AndrewN’Nkumuku, son (deceased). She submits that the Objector is a stranger to the estate because she is the wife to Nabeawho is not the Deceased and no one in their family has such a name. She asserts that she properly filed and gazzetted the succession in 2012 and the grant was issued and confirmed on 26th November 2012 where all the beneficiaries were in agreement. That the Objector intends to benefit and she is not a beneficiary and further introduces another stranger that is JANE NKATHA. She urges the court to dismiss the Objector’s objection since she has demonstrated to the court that the grant was properly obtained.

[7] In her replying affidavit dated 21st March 2017 she replies to the affidavit of JANE NKATHA MWANGI. She affirms that the latter is a stranger to the estate for she only knows JANE KAMONGO. That the said Jane Mwangi the Objector is talking about does not have any share from the estate. She further deposes that the said Jane Mwangi lied by stating the wrong beneficiaries in her affidavit. That Jane NkathaMwangi stated that she has been given ¼ acre which is untrue since the said ¼ was given to Jane Kamongo who is a minor. It is untrue for Jane NkathaMwangi to state that the Objector has been in occupation of her land which relates to the estate. She makes this affidavit in reply to confirm that Jane NkathaMwangi is a stranger in the estate and is trying to mislead this court for her own benefit.

[8] In her further affidavit dated 1st August 2016 she states that the Land Parcel had been registered to her in 2014. Upon registration she sub-divided it and showed beneficiaries their respective portions of which they took possession of immediately and started cultivating. She states that the Objector led a gang of people on 29th September 2015 who invaded the Land Parcel and chased the beneficiaries, assaulted some of them and demolished the houses on the Land where they lived (attached are P. 3 forms for the Petitioner and FABIANO MAITIMA). She requests that the production of National Identity Card of JANE KAMONGO by the Objector and Production of the National Identity Card/ Marriage certificate of the Objector. She further deposes that the purchaser who is in the confirmed grant bought the said portion from the Deceased.

DETERMINATION

[9] In case of intestacy, the law has provided for order of preference which should guide the court in determining who should apply for grant of letters of administration of the estate. Section 66 of the Law of Succession Act recognizes that fact and full text thereof is reproduced below:

“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.”

[10] As a matter of law, any personof equal or lesser right who wishes to take out letters of administrationof an estate should seek forexpress consent or renunciation of right to apply for grant of letters of administration from persons of equal or prior right in applying for letters of administration. In addition, no grant should be made to any person without notice to persons in equal degree or priority to the applicant. Below see Rule 26 of the Probate and Administration Rules:-

26. Grants of letters of administration

(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.

(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

(3) Unless the court otherwise directs for reasons to be recorded, administration shall be granted to a living person in his own right in preference to the personal representative of a deceased person who would, if living, have been entitled in the same degree, and to a person not under disability in preference to an infant entitled in the same degree.

I, wish however to address rule 27 of the Probate and Administration Rules reproduced below because I have heard arguments on it which are quite incomprehensible. The Rule states as follows:-

27. Exceptions to rules as to priority Nothing in rule 26 shall operate to prevent a grant being made to any person to whom a grant may be made, or may be required to be made, under the Act.

The rule does not override the need of notice, consent or renunciation in rule 26. It merely enables the court to issue grant to a person to whom a grant may be made or may be required to be made under the law. I have in mind grant of representation to the Public Trustee where no one has applied for letters of administration or the beneficiaries cannot agree on who should take out representation. This is important to understand while I make my decision.

[11] In this case, the Deceased had eight children according to the Chief’s letter dated 10th April 2012 although only three of them are alive. Since the Deceased’s spouse is not alive the children are next in line as per the order of preference to apply for letters of administration. However, the letters of administration were taken out by the Petitioner who is allegedly the granddaughter of the Deceased although that relationship has not been exactly established. I nevertheless note that Form 38 was signed. But the said consent given was not confirmed or ascertained. One other thing; Jane NkathaMwangi claims to be the granddaughter of the deceased. She would certainly be entitled to inherit her late mother’s share under the principle of representation and section 41 of the Law of Succession Act. Although I note that her identity has been questioned by the Petitioner who stated that the true beneficiary is Jane Kamongo. According to the Petitioner, the said Jane Kamongo is a minor. The Objector and Jane NkathaMwangidisputes this fact and stated that Jane NkathaMwangi is the true granddaughter of the deceased and is over 45 years. They accuse the Petitioner of perjury. The Petitioner, the Objector and Jane Nkatha recognize that there is ‘a Jane’ who is the granddaughter of the deceased except it seems that one side of the parties is attempting to mislead the court. Again and I have already stated this, although the Petitioner alleges that she is a grandchild of the deceased, she did not exactly established that relationship with the Deceased. The Objector and Jane Nkatha say that she is merely a distant relative who is not entitled to inheritance herein. It is also imperative consideration that the Objector’s occupation of the land and right to inherit have also become issues in controversy. For sure, there is a whole quagmire which requires a more reinforcing interrogation of these matters for the sake of justice. Accordingly, there are sufficient grounds to revoke the grant under section 76 of the Law of Succession Act which states as follows:

A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—

(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow;or

(ii)to proceed diligently with the administration of the estate; or

(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) that the grant has become useless and inoperative through subsequent circumstances.

[12] It is also worth of note that one MARY WAIRIMU NDIRI is indicated to be one of the dependants that survived the Deceased in Form 9. Yet it is now clear that she was a mere purchaser of the estate property in order to provide money for the filing of this cause. This is a crucial aspect of administration of justice and could be an incident of intermeddling with the estate. From the foregoing, the grant that was confirmed 26th November 2013 is fraught with illegal sediments as it also included strangers and gave them land. It is also apparent that rightful beneficiaries may have been left out of the estate. Therefore due to all the reasons above, and the fact that identities of the rightful beneficiaries and their respective shares are in doubt, this grant is a perfect candidate for revocation and I hereby revoke it. But for purposes of moving this cause forward, I also order that:

a. Within 30 days of today on a date I shall appoint, parties will provide the court with two persons who shall be appointed by the court as administrators of the estate. If they do not do so, I will exercise my discretion under section 66 of the Law of Succession Act and appoint administrators of the estate.

b. On a date I shall appoint, JANE, the daughter of the MARIA MAKENA shall be brought before this court by the Petitioner.

Dated, signed and delivered in open court at MERU this 10th day of October 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Anampiu Advocate for Objector

Objector – present

Petitioner – present

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F. GIKONYO

JUDGE