[2022] KEHC 13613 (KLR)

In re Estate of Adriano Nthiga Thang’ari Alias Adriano Nthiga Alias Adriano Nthiga Thang’ari (Deceased) (Succession Cause 175 of 2015) [2022] KEHC 13613 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13613 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 175 of 2015

LM Njuguna, J

October 4, 2022

IN THE MATTER OF THE ESTATE OF ADRIANO NTHIGA THANG’ARI ALIAS ADRIANO NTHIGA ALIAS ADRIANO NTHIGA THANG’ARI (DECEASED)

Between

Michael Njagi Nthiga

Applicant

and

Serina Wanjuki Rwamba

Respondent

Ruling

1. Before this court is the summons dated September 26, 2017 and filed in court on September 29, 2017 which seeks revocation and/or annulment of the grant of letters of administration made to Saweria Rwamba Andrew in relation to the estate of the deceased herein.

2. The said summons is based on the grounds on its face and it’s supported by the affidavit annexed to the application.

3. In a nutshell, it is the applicant’s case that the said grant was obtained by means of untrue allegations of facts, fraudulently by making of a false statement or by concealment from court of something material to the case and the proceedings to obtain the grant were defective in substance. It appears that the applicant’s claim is that the grant was defective in nature and substance by concealment to the court of the fact that he was one of the biological sons to the deceased. That the area assistant chief and the area administrator colluded with one Joseph Mwaniki Njeru as one of the deceased’s heirs to disinherit him. In the process of hearing this matter, the petitioner passed on before the same could be heard and determined and therefore she was substituted by one Serina Wanjuki Rwamba, his daughter.

4. The application is opposed by the respondent herein vide her replying affidavit sworn on January 31, 2020 and wherein she deposed that the deceased herein, Adriano Nthiga Thangari owned a share in Plot No XXXX at Runyenjes Market with five others and that upon the death of the partners, the family was represented by the applicant herein as he had been duly appointed by the petitioner. That since the applicant took possession of the said plot, he never surrendered any amount to the petitioner. It was deponed that whenever the applicant could be asked for money, he would inform the petitioner that the money received from the plot was being banked so that the company could construct a modern building. Further, it was revealed that the applicant in cohort with others had sold the said plot and had received and shared an amount of KES 666,000. 00 without the consent of the petitioner. That the petitioner in return made an advertisement of a quarter acre for sale of the estate herein and finally got one Joseph Mwaniki Njeru and because the applicant had already benefitted from the sale of Plot No XXXX at Runyenjes Market, he ought not to get any share of the estate herein. In the end, it was prayed that this court dismisses the application herein with costs to the petitioner.

5. Directions were taken that the application be canvassed by way of written submissions and up to the date of writing this ruling, no party had complied with the said directions.

6. I have perused the application herein and the response thereto by the respondent and it is my view that this court has been called upon to determine whether the orders sought for revocation of the grant issued to the petitioner/respondent can be granted.

7. As I have already noted, the application herein seeks revocation of the grant made to the petitioner/respondent herein. The grant issued to the respondent is dated February 12, 2016.

8. The circumstances under which a grant of representation may be revoked are provided for under section 76 (a) - (e) of the Law of Succession Act and include;a.Where the proceedings to obtain the grant were defective in substance;b.Where 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.Where 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.Where 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; orii.to proceed diligently with the administration of the estate; oriii.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; ore.Where the grant has become useless and inoperative through subsequent circumstances.

9. What is clear from the above provision is that when a court is dealing with an application for revocation of grant, it is supposed to consider only the process of obtaining the grant. Such that issues touching on the process of confirmation of the grant and distribution of the estate amongst the beneficiaries is beyond what the court should consider as it is not covered by section 76 and thus cannot form a basis of revoking a grant but ought to be challenged through a review or appeal. In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR, W Musyoka, J after analyzing section 76 and discussing the meaning of a grant within the provisions of the laws governing succession in Kenya held thus: -'17. I have very closely perused through the provisions of the Law of Succession Act, and I have not come across any provision that provides a remedy to a person who is aggrieved by confirmation orders. sections 71, 72 and 73 of the Law of Succession Act, which deal with confirmation of grants, do not address the question of redress for parties who are unhappy with the confirmation process, nor do they deal generally with flaws in the confirmation process. As stated above, section 76 has nothing to do with the confirmation process, and provides no relief at all to any person unhappy with the confirmation process. In the absence of any provision in the Law of Succession Act, for relief or redress for persons aggrieved by such orders, the aggrieved parties have only two recourses under general civil law, that is to say appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one can also apply for the setting aside or vacating of confirmation orders, where the same are obtained through abuse of procedure.”

10. Therefore, the submissions by the respondent that the applicant had been allocated Plot No XXXX, in my view, is misplaced as already indicated elsewhere in this judgment that what this court should look into is the process of acquiring the grant and further examine whether the conditions as stipulated for revocation have been met in reference to the estate herein.

11. The applicant argued that he was not informed of the succession cause or served with citation to accept or refuse letters of administration intestate. Section 76 bestows a court handling an application for revocation of grant powers to proceed suo moto where there are good reasons for revocation of grant. It is not in dispute that the deceased was the registered proprietor of KK/1XXXX as the certificate of official search filed in court indicates.

12. Further, from the court record, there is a letter from the assistant chief dated February 3, 2005 wherein all the family members of the deceased were listed with the exception of the applicant herein. Though a chief’s letter is not a legal requirement in filing succession cause, it is presumed that since the chief, and in this case, the assistant chief is well familiar with the family of a deceased person within his area of jurisdiction, he is the only person who can inform the court of the rightful beneficiaries left behind by a deceased. In the Form P & A 5 (affidavit in support of petition for letters of administration intestate) the applicant has not been listed as a beneficiary while in the replying affidavit by the respondent, she admits that indeed the applicant is a son to the deceased. All the beneficiaries of the estate of the deceased are not listed in the said form.

13. From the perusal of the application before me, it is clear that the applicant is a biological son of the deceased herein as the same has been corroborated by the respondent. His interests in the estate of the deceased arises from the fact that he is a dependent of the estate herein. That notwithstanding, the respondent has argued that indeed the applicant had previously benefitted from Plot XXXX at Runyenjes Market to the exclusion of the rest of the beneficiaries of the estate. Attached thereto is an alleged demand letter from the firm of Githinji Karuri Advocates in which he demands from the applicant herein a refund of an amount Kshs 667,000/=; of what is not clear is whether the alleged land belonged to the deceased herein [see section 107 of the Evidence Act]. Of importance to note is the fact that the petitioner ought to have laid evidence before this court to prove that the alleged Plot NoXXXX at Runyenjes Market belonged to the deceased so as to proof that indeed the applicant had previously benefitted from the estate of the deceased. [see section 42 of LSA]. Given that nothing has been presented before this court to support such an averment, I am inclined to find that the applicant ought to have benefitted from the estate herein.

14. Further, the respondent’s replying affidavit deponed on January 31, 2020 indicates that the applicant herein had previously sold Plot No 216 at Runyenjes Market belonging to the deceased herein. The law dictates that the petition for letters of administration should be accompanied by an affidavit in support of the same (P & A 5) and all the assets, liabilities and beneficiaries surviving the deceased should be listed. The respondent herein failed to do so. It is then clear that the grant of letters of administration was obtained fraudulently by concealment of material facts to the court. [see inre Estate Shem Kitanga (Deceased) [2018] eKLR].

15. In my view therefore, the grant issued to the respondent herein ought to be revoked and it is hereby revoked.

16. Orders accordingly.

DELIVERED, DATED AND SIGNED ATEMBU THIS4TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE……………………………………….…..for the Applicant………………………………………..for the Respondent