[2017] KEHC 1156 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

CIVIL APPEAL NO. 12 OF 2006

IN THE MATTER OF THE ESTATE OF THE LATE ELIZABETH NYAMBURA MUKUNU (DECEASED)

RULING

1. Sarah Wangari Kuria filed a Summons for Revocation or Annulment of grant dated the 16/1/2009. The application is brought Section 76 of the Law Succession Act and Rule 44 (1) of the Probate and Administration Rules on the 11th August 2009. She seeks to have the grant revoked on the following ground;

i. That the proceedings to obtain the grant were defective in substance.

ii. The grant was obtained fraudulently by making of false statements and representation and concealment from the Court of facts material to the case.

iii. The grant was obtained by means of untrue allegations of facts essential in point of law to justify the grant.

iv. The cost of the application be provided for.

2. Sarah passed on and was substituted by Elizabeth Wanjiru Mburu who is daughter in law of Sarah Wangari Kuria. The Objectors case as per the affidavit of Sarah Wangari Kuria the initial objector is that; she was the mother of one of the beneficiaries Joshua Mburu Gathu who is deceased. That Succession Cause no. 4 of 1997 was filed in Kiambu. An Objection was filed by the respondents who were the Objectors in the Kiambu matter. In the Appeal Justice Onyancha ordered that the two objectors and her son be issued with a grant of letters of administration jointly. That her son Joshua Mburu Gathu passed on the 12th November 1998 and no substitution was done. That on the 15/1/2009 the 1st and 2nd Objectors who are the co-administrators with her son applied for grant of letters of administration and deliberately omitted the name of her son and hence distorting the order of Justice Onyancha. That the grant issued to Johnson Kamau Njuguna and John Kamau Murima be revoked until Joshua Mburu Gathu name is substituted for purposes of taking cause of her house interest.

3. Parties argued the Objection by way of written submissions. The Objector counsels submissions reiterated what is the affidavit of Sarah Kuria. It’s submitted that the grant should be revoked as the letters that were taken out on the 15/1/2009 were secretly filed and confirmed on the 30/3/2009 without involving the applicant who is a beneficiary of the estate of Elizabeth Nyambura. The Respondent submitted that it is upon the estate of Joshua Mburu to apply for Letters of Administration in order to have a locus standi in this matter. That Justice Onyancha directed that the confirmation of grant be applied for in 4 months and the Respondents did so. That the deceased was included in the summons for confirmation of grant and the property was shared among the 3 beneficiaries. That the applicants have not demonstrated any false statement nor have they revealed any concealment. That the grant was based on material facts canvassed and proved in court by the parties. The summons for revocation is a nullity the same having been brought by a party who does not have any locus standi to claim on behalf of the estate of the deceased without letters of administration of the estate of Joshua Mburu (deceased). That the supporting affidavit has been thumb printed without a certificate of thumbing being attached and the same should be dismissed. That if the court finds that an error in the face of the grant issued the same was not occasioned by the applicants as the grant was issued by the court. That there is no way the grant could have been issued to a deceased person however the shares in the property in dispute will and has been proposed to share equally among the 3 beneficiaries whom the court recognised.

4. Elizabeth Mburu too filed submissions. In her submissions she claims that she is claiming the said land as all her departed family members were buried in the said land. She claims that each respondent went back to their father and inherited there and that they left 15 years ago before their auntie’s death in 1996. In another set of submissions filed in court on the 16th of November 2016 she gives a background of their ancestral land and attacks the judgment of Justice Onyancha that the Judge belittled Section 36 of the Law of Succession Act. She contends that the land Limuru/ Bibironi/138 was land that belonged to the deceased’s husband Joshua Mukunu who was the registered proprietor but he died in 1959. That the land was registered in the name of Elizabeth Nyambura on the 9/4/1966.

5. I have gone through the court record. The record shows that Justice Onyancha in his Judgment dated the 15/1/2009 held that the objectors Johnson Kamau and John Kamau Murima had been adopted by the deceased including Joshua Mburu and had a right to be beneficiaries of the estate of Elizabeth Nyambura. The court ordered that a joint Letters of Administration be issued to Johnson Kamau Njuguna, John Kamau Murima and Joshua Mburu and that the three grantees apply for confirmation of the grant within 4 months. John Kamau Murima applied to have the grant confirmed on the 16/2/2009and there is a consent of Johnson Kamau Njuguna attached. The application for confirmation of grant has not been heard as Sarah filed an Objection. The assets as per the affidavit of Johnson Kamau is plot Limuru/ Bibirioni/138 which was to be divided amongst the said three beneficiaries. The affidavit in support of the Objector’s application has attached a copy of a death certificate it shows that Joshua Mburu Gathu died on the 12th November 1998. This was not disclosed to the court at hearing of the Appeal. A grant was issued as per the judgment of Justice Onyancha. I believe that if the court was informed that Joshua Mburu had died then the Court could have made different orders on the beneficiaries. The Appellant who is the Objector Sarah Kuria too never disclosed this issue to the Court at the hearing of the appeal. The record shows that appeal was heard in 2008 and Joshua died in 1998. The court had no way of knowing that the Joshua Mburu had passed on. The matter was canvassed by way of written submissions and a judgment rendered based on the evidence adduced in the lower court in between 1997 and 1999. I note that Joshua Mburu never testified in the lower court. Now that it has come to light that Joshua died then the personal representative of the estate of Joshua Mburu is the one who can pursue the matter in court. The applicant Sarah Kuria in her affidavit in support claims to be the mother of Joshua Mburu Gathu, she did not attach anything to show that she is the administrator of the estate of Joshua Mburu Gathu. Elizabeth Mburu was substituted in place of Sarah, she claims to be a daughter- in- law of Sarah. She too has not demonstrated that she is the legal representative of Joshua Mburu. In her submissions she is claiming the entire suit property the suit. She has given evidence in her submissions. She can pursue her claim in the Environment and Land Court. She is also dissatisfied with the judgment of Justice Onyancha, there is no indication that the Appellant appealed to the Court of Appeal. I agree with the Respondents submission she has no locus standi in the matter. In addition I find that the Objector has failed to demonstrate that the grant was obtained fraudulently by making false statements and misrepresentations and concealment from the court material facts nor were the proceedings defective. The Objection is dismissed with no order as to costs. The administrators to proceed to confirm the grant. It is so ordered.

Dated signed and delivered this 10th day of November 2017

R.E. OUGO

JUDGE

In the presence of;

Elizabeth Mburu in person Applicant

Miss Monyangi For the Respondents

Ms. Charity Court Clerk