[2022] KEHC 10425 (KLR)

In re Estate of Amos Njenga Gikonyo (Deceased) (Succession Cause 426 of 2006) [2022] KEHC 10425 (KLR) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10425 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 426 of 2006

JM Ngugi, J

June 2, 2022

IN THE ESTATE OF AMOS NJENGA GIKONYO (DECEASED)

In the matter of

Charles Nganga Njenga

Applicant

and

Lucy Wangari Njenga

Respondent

Ruling

1. Amos Njenga Gikonyo (“Deceased”) died on December 22, 2005. His wife, Lucy Wangari Njenga, (hereinafter “the Petitioner”’) petitioned the Court and was issued with a Grant of Letters of Administration on October 22, 2006. In the intervening period there have been several applications and objections filed by the parties. There have also been attempts at negotiation on the mode of distribution of the estate of the Deceased, until January 16, 2022 when the Court was informed that negotiations had collapsed.

2. Before the matter could proceed for hearing, the Applicant filed the Summons for Revocation dated May 18, 2021 seeking the following orders:a.Spentb.That the grant of letters of administration issued to Lucy Wangari Njenga on 22nd October 2006 be revoked or annulled forthwith.c.That this Honourable Court be pleased to issue directions on the power of attorney by the administrator dated 11th March, 2020 on the estate.d.That the costs of this application be provided for.

3. The application is supported by the Affidavit of John Mburu Njenga (“John”) dated May 18, 2021 on the authority of the Applicant and Tabitha Kaburu Njenga. Both are the children of the Deceased, and, hence, beneficiaries of the estate of the Deceased. John depones that the Grant of Letters of Administration issued to the Respondent on October 22, 2006 is yet to be confirmed. He considers that the Respondent is not keen on fixing the matter for hearing so that the issue of distribution of the estate can be heard and determined.

4. The Applicant also depones that the Petitioner has, without the authority of the other beneficiaries, appointed another person to run the affairs of the estate through a power of attorney. That other person is her sister, Grace Wanjiku Kiarie. John says that Grace has filed suits in Courts on behalf of the estate without the beneficiaries’ consent. He contends that the Petitioner’s action to appoint another person to run the affairs of the estate without consulting the beneficiaries is a clear demonstration that the Petitioner is not keen on protecting the estate and the interests of the beneficiaries.

5. It is also the Applicant’s averment that the Petitioner has failed to file a full inventory and accounts of the estate as required by law and continues to receive rental income on behalf of the estate which she does not account for.

6. Susan Waithira Gachohi, another beneficiary, also filed an affidavit in support of the Application. Her affidavit is datedJune 10, 2021. She, too, depones that the Petitioner, who is her mother-in-law, has purported to donate a power of attorney to Grace Wanjiku Kiarie to deal with the estate.

7. She says that the said Grace Wanjiku Kiarie has, without the consent of the family, instituted Nakuru ELC No.14 of 2021 as well as Nakuru CMCC E025 of 2021 claiming ownership of Miti Mingi/ Mbaruk Block 5/229. She depones that she has never been consulted on the donation of the power of attorney. She believes that the said Grace Wanjiku Kiarie has taken advantage of the Petitioner’s old age to obtain a general power of attorney.

8. She contends that in law, an administrator cannot appoint a beneficiary and that if unable to administer the estate, the administrator should inform the court so that another administrator is elected by the Court.

9. The Application is opposed through the Affidavit of Grace Wanjiku Kiarie dated 08/04/2022. Grace Depones that she is a daughter of the Deceased, a beneficiary of the estate and the donee of a power of attorney from the Respondent to initiate Nakuru ELC No. 14 of 2021 and Nakuru CMCC E025 of 2021.

10. Grace deposes that the said power of attorney has only been used to protect, recover, and preserve assets of the Deceased. According to her, the Objectors’ intention is to mislead the Court on the Administrator’s inability to administer the estate when it is them- the Objectors who have frustrated the Court proceedings for the past 15 years by being unavailable and misleading the Court that they wish to have a family meeting to resolve the issue of administratorship.

11. She says that the Objectors have failed to attend three family meetings called by the Petitioner and have instead colluded to dispose the properties of the estate by selling it to third parties thus intermeddling with the estate. According to her, the Objectors colluded and illegally sold Miti Mingi/ Mbaruk Block 5/76 to Rurengoh Thuku and Bernadette Njoki Mambo some time in 2008, which is the subject of Nakuru ELC 14 of 2021. She claims that the three Objectors are the only beneficiaries who benefited from the said sale through forgery and impersonation of the Deceased. Grace also depones that the Objectors colluded in 2009 and sold Miti Mingi/ Mbaruk Block 5/299 and Miti Mingi Mbaruk Block 5/300 to a Serah Wambui Waithiru for Kshs 360,000.

12. Grace contends that the reason for non-confirmation is the intermeddling by the Objectors. According to her, the suits she has instituted on behalf of the Respondent are against the Objectors for allowing trespassers onto parcels forming part of the estate and they are meant to have the said parcels returned to the estate of the deceased for distribution. Those suits she contends, have no prejudice against the Objectors since they seek to recover assets of the estate.

13. She says that the Objectors have frustrated all efforts to meet and resolve the issues and have recently declined a call by the Petitioner’s advocates to nominate two persons to serve as administrators. She believes that the Objectors’ frustration of the distribution process is due to fear of being discovered as intermeddlers.

14. Grace maintains that the power of attorney was granted to her to recover the three properties due to the Respondent’s minimal understanding of English and to expedite matters and that the Respondent is a witness in both suits.

15. It is also her deposition that all Court attendances have been adjourned at the behest of the Objectors and that the Respondent has sought multiple audiences from the Directorate of Criminal Investigation, the Ombudsman, Land Registrars Naivasha in an effort to recover the properties to enable her to distribute the estate. She deposes further that one of the Objectors Charles Nganga Njenga has been implicated by the trespassers for having sold Miti Mingi/Mbaruk Block 5/76 and blaming the Respondent for interfering with them.

16. Grace therefore contends that the application has been brought in bad faith to defeat pursuit of the theft of the assets of the estate as all family members including the Objectors agreed that the Respondent be the administrator. She prays that the Court grant a hearing date on a priority basis.

17. Lucy Wangari Njenga, Evans Matheri Igogo and Tabitha Njenga also filed affidavits all dated 08/04/2022 in opposition to the Application. They essentially rehashed the depositions by Grace Wanjiru Kiarie. To wit, that the Respondent donated a Power of Attorney P/A 73236/1 to her eldest daughter, Grace Wanjiku Kiarie, for purpose of filing Nakuru ELCNo. 14 of 2021 and Nakuru CMCC No. E025 of 2021, that the Power of Attorney has only been used to protect, recover, and preserve the assets of the estate, that the Objectors have frustrated the Court proceedings for the past 15 years due to their unavailability and misleading the Court that they wish to hold a family meeting, that the Objectors are intermeddling in the estate and that they were consulted before the filing of the two suits.

18. The application was argued by way of written submissions. Two sets of submissions were filed in support of the Application. The first, drawn by Nancy W. Njoroge & Co. Advocates dated 12/11/2021 for Susan Waithira Gachohi. She cites the provisions of Section 79, 82 and 83 of the Law of Succession Act. She contends that under the provisions of Section 76(d) of the Law of Succession Act, a grant may be revoked if the Petitioner fails to apply for confirmation of grant within one year. She also relies on Section 76(d)(ii) which provides that a grant may be annulled if the Administrator fails to proceed diligently.

19. She submits that the current Administrator has failed to produce in Court an inventory or account of administration as required in law and relies on the case of Ibrahim v Hassan & Charles Kimenyi Macharia, Interested Party [2019] eKLR. She contends that the grant has become useless and inoperative by the Respondent donating a power of attorney to Grace Kiarie. She argues that the Respondent has misused the grant issued to her as the Law of Succession Act does not contemplate a situation where an administrator donates her power over the estate without involving other beneficiaries. To her, the Petitioner has no locus standi to unilaterally donate power to another person. She relies on the case of Libya Oil Kenya Limited v Irene Juliet Otinga & 4 others [2015] eKLR in support of the position that a power of attorney can only be donated on a property personally held and not jointly held or claimed with others.

20. The Applicant filed the second set of submissions dated 10/11/2021. It is the Applicant’s contention that where a person is made an administrator, the consent of all the beneficiaries ought to be obtained. He relies on the case of David Muriuki Mugambi v Jesse K. Mugambi & Another [2015] eKLR, where the Court found that the consent of beneficiaries was required for the appointment of an administrator. He cites the role of the administrator as set out in Rose Wanjiku Kuria v Nganga Mugwe [2003] eKLR.

21. The Applicant argues that there is no justification for why the grant has not been confirmed in 15 years and why the administration of the estate has never been finalised. To the Applicant, the Administrator is expected to perform her duties for the benefit of the beneficiaries. The Applicant relies on In Res Estate of Sananga okonda (Deceased) [2020] eKLR where it was held that the responsibility of the administrator cannot be transferred to other persons by virtue of Section 79 of the Law of Succession Act. The Applicant also relies on David Muriuki Mugambi v Jesses N. K. Mugambi & Another [2015] eKLR, Rose Wanjiku Kuria v Nganga Mugwe [2003] eKLR and In Re Estate of Sananga Okonda (deceased) [2020] eKLR.

22. The Respondent’s submissions are dated 11/04/2022. She contends that the instant application lacks merit for concealment of material facts that is, that the Objectors have been intermeddling in the estate. The Respondent equally cites the provisions of Section 76 of the Law of Succession Act and the case of Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015]. She submits that in this case, she was rightly issued with the grant of letters of administration. She relies on the case of albert Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] eKLR.

23. The Respondent submits that the Applicants have not come to equity with clean hands. She cites the provisions of section 45 of the Law of Succession Act which prohibits intermeddling in a deceased’s estate. She contends that under Section 82 of the Law of Succession Act, the administrator has the power to enforce by suit all causes of action which survive the deceased or arise out of his death for his estate. She relies on the interpretation of Section 82 given in the case of Alexander Mutunga Wathome v peter Lavu Tumbo & Another [2015] eKLR.

24. The Respondent submits that the estate will suffer irreparably if the Court revokes the grant of letters of administration and contends that she donated powers to a beneficiary of the estate and not an outsider. She relies on a passage from Musyoka W. M in Law of Succession Law Africa at page 146 on the extent to which a personal representative can delegate their duties, specifically the delegation of decision-making power through the creation of a power of attorney. The Respondent also relies on In Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR.

25. From the foregoing, the issues for determination are whether the Grant of Letters of Administration issued to the Respondent ought to be revoked and what orders this Court should make for the best interest of the estate.

26. The reasons advanced by the Applicant are those found under Section 76(d) of the Law of Succession Act i.e.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.

27. The first complaint levelled against the Petitioner is that she has failed to have the Grant confirmed, more than 15 years after it was issued. I note that the Petitioner had earlier sough confirmation of the grant through the summons dated 13/06/2012. As indicated elsewhere in this Ruling, there have been various applications filed by the parties as well as attempts at negotiating the matter out of Court. The Respondent can therefore not be solely blamed for the matter not having proceeded for hearing.

28. The second complaint is that theof the Power of Attorney. While the Respondent contends that the Power of Attorney is only intended for filing the two suits before the ELC and the Lower Court, the wording of the power of attorney on record does not reveal itself as a specific power of attorney in relation to the two suits, but rather a General Power of Attorney permitting Grace Wanjiku Kiarie to deal with all affairs of the Respondent.

29. Even if the case was that the Power of attorney was only in relation to the two suits, Section 82 of the Law of Succession Act places on the Administrator the duty of prosecuting or defending suits on behalf of the estate. On whether this duty can be delegated, the Applicant argues that this power cannot be delegated unilaterally without consulting the beneficiaries of the estate. The Respondent on the other hand argues that a lawfully appointed administrator can delegate her power and justifies it with the Donee of the power of attorney being a beneficiary of the estate and not a stranger.

30. The common thread from our jurisprudence is that an administrator cannot delegate any discretion in matters relating to the administration of the estate. In Re Estate Of Krishan Murti Maini (Deceased) [2011] eKLR the Court remarked on delegation of an administrator’s duties as follows:“It is therefore clear that when a court issues letters of administration or grants a probate of written will, such letters or grants are issued personal to the person applying to administer the estate of the deceased. The person applying for letters of administration or grant of probate cannot on his part delegate the powers granted to him by the court to someone else to administer the estate (in the case where the deceased died intestate) or to execute the will (in the case where the deceased left behind a written will) on his behalf.”

31. This position has been echoed by the High Court in In re Estate of Haji Mohamed (Deceased) [2016] eKLR. Indeed, the excerpt relied upon by the Petitioner emphasizes the position that while the administrator can employ an agent to transact on their behalf, the decision-making power over the estate remains with the personal representatives.

32. Does the fact that the Donee of the Power of attorney is a beneficiary remedy the situation? The Court of Appeal had this to say on delegation of the duties of an administrator in Rebeccah Njeri Muturi v Violet Wambui Muturi [2019] eKLR:The respondent has no power to delegate her powers and duties as a co-administrator of the estate by donating a power of attorney. Indeed, the Donee of the power of Attorney would not have any power by virtue of the power of Attorney to perform his statutory duties and exercise the powers of the administrator such as completing the administration of the estate or giving the requisite Assents or executing transfers. Those duties can only be performed by an administrator appointed by the Court.

33. The Court of Appeal however appreciated an application for revocation filed by a Beneficiary within the Succession Cause, with or without a Power of Attorney was properly before the Court. In my view, the duty of instituting and/ or defending suits on behalf of the estate is a duty expressly given in law and cannot be delegated through a power of attorney, not even to a beneficiary of the estate.

34. Is this delegation of duty sufficient ground for revocation of the grant issued to the Respondent? The reasons given by the Respondent for donating a power of attorney is her minimal understanding of English. The very fact that the Administrator has donated a general Power of Attorney to another person to administer the estate on her behalf because she is unable to do so, is an admission that she is unable to perform her duties as an administrator of the estate. The only remedy for that is to remove her as an administrator of the estate. An administrator of a Deceased’s estate has strenuous statutory duties they are expected to carry out. It is pointless to ask the Court to appoint one an administrator and then turn around and donate the Power of Attorney to another person to exercise the duties one is expected to perform as an administrator.

35. From the material before me, it appears that there is a fault-line in this family dividing them into two. On the one hand is the Petitioner, Grace, and Evans. On the other hand, there is the Applicant and Susan. Tabitha seems undecided. The Applicant claims that he swore the affidavit and brought the Application on her behalf – but she seems to have sworn another affidavit on 08/04/2022 in opposition to the Application. In any event, it seems that the best way forward is to appoint new administrators to the estate representing the two sides. In doing so, I must note that Grace, the donee of the Power of Attorney, seems only to have taken actions that are in defence of the estate. I easily find that she should be one of the new administrators. The other administrators will be Evans, John, and Susan.

36. Accordingly, I make the following orders:I. The Grant dated October 22, 2006 issued to the Applicant be and is hereby revoked.II. A fresh grant is hereby issued to Grace Wanjiku Kiarie; Evans Matheri Igogo; John Mburu Njenga and Susan Waithira Gachohi.III. In accordance with Article 159(2)(c) of the Constitution, the parties are referred to the Court-Annexed Alternative Justice Systems Registry for possible negotiations and settlement of the question of distribution. The said process to be attempted for a period of 30 days.IV. Costs to be in the Cause.

37. Orders Accordingly.

DATED AND DELIVERED AT NAKURU THIS 2ND DAY OF JUNE, 2022. ………………………JOEL NGUGIJUDGE