[2022] KEHC 1799 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 314 OF 2006

IN THE MATTER OF THE ESTATE OF DANIEL KIFUKU KAMONYE ALIAS DANIEL KIBUKU KAMONYE ALIAS KIFUKU KAMONYE ALIAS DANIEL KIFUFU (DECEASED)

TERESIAH WANGUI MALUKI...........................................1ST APPLICANT

MARGARET NJERI KIBUKU.............................................2ND APPLICANT

SUSAN WANGARI KIBUKU................................................3RD APPLICANT

CECILIA WANGECI DANIEL.............................................4TH APPLICANT

LUCY WANJIRU KIBUKU ..................................................5TH APPLICANT

JECINTA WAIRIMU KIBUKU........................................... 6TH APPLICANT

ROSE NYAMBURA KIBUKU...............................................7TH APPLICANT

VERSUS

ESTHER WANJIRU KIBUKU ........ 1ST ADMINISTRATIX/RESPONDENT

JOSEPH KAMAU KIBUKU............. 2ND ADMINISTRATIX/RESPONDENT

GRACE WAMBUI KIBIKU...............3RD ADMINISTRATIX/RESPONDENT

R U L I N G

1. There are two applications for determination before court. One dated 17th June, 2021 filed by the applicant Stephen Karanja Kibuku, brought under Articles 47, 48 and 50 of the Constitution 2010, Section 47 of the Law of Succession Act. CAP 160 and Rules 65(3), 66, 67, 72 and 73 of the Probate and Administration Rules 2012 and the other one is dated 21st June, 2021 filed by Administrators herein, brought under Section 47 of the Law of Succession Act and Rule 73 of Probate and Administration Rules.

2. In the first Application the applicant seeks for the following orders among others

i. THAT the Judgement, ruling and subsequent orders of this Honourable Court issued on 31st May 2021 be vacated, revoked and or set aside.

ii. THAT upon grant of prayer above, the beneficiary/applicant be granted leave to respond and or reply to the allegations directed at him in respect of the Applicants/Respondents Application dated 3rd February, 2021 and the subsequent affidavits filed therewith.

iii. THAT costs of this application be provided for.

iv. Any further order(s) that this Honourable Court may deem just and expedient to grant in the interest of justice.

3. The application is premised on the grounds on its face and supported by an affidavit sworn by Stephen Karanja Kibuku on 17th June, 2021. He deponed that constitution 2010 under Articles 47, 48 and 50 guarantees every Kenyan citizen a right to fair hearing, right to access justice yet on 31st May, 2021 this court delivered a Ruling in respect of an Application dated 3rd February, 2021 heavily castigating him whereas he was not served with the same in order to respond.

4. He deposed that depositions contained at paragraphs 27 and 28 of the Supplementary Affidavit dated 23rd September, 2020 are unsubstantiated. That it is fair for this court to make a finding that he ought to have responded to allegations at paragraph 60 of its judgement.

5. He stated that this court has jurisdiction under section 65(3) and 67 of the Probate and Administration Rules 2012 to allow this application and that denying him the opportunity to respond to issues raised touching on his person is a breach to his constitutional rights.

6. The respondents filed a Replying Affidavit in opposition of this Application. The affidavit is sworn by Jecintah Wairimu Kibuku on 14th July, 2021 on her behalf and on behalf of her co-respondents.

7. She deponed that the Application dated 17th June, 2021 is incompetent and purely calculated at confounding, frustrating and delaying the administration of the estate of their late father to facilitate personal aggrandizement of the erstwhile administrators and the applicant who has been their collaborator and beneficiary.

8. She deposed that no adverse orders were made against the applicant as the court only revoked the letter of administration issued to erstwhile administrators and the applicant not having been administrator cannot content that is aggrieved by the orders of the court he seeks to appeal against.

9. That the Applicant has failed to demonstrate what substantial harm he will suffer and how his appeal will be rendered nugatory to warrant stay of execution and that if the Applicant’s grief was that he was not heard then the available course was to seek for review orders so that his input can be considered.

10. In the second Application, the Applicants seek orders inter alia:-

i. THAT the court be pleased to review, vary and or set aside the orders issued by the Court on 31st May, 2021;

ii. THAT the costs of this application be provided for.

11. The application is premised on grounds on its face and supported by an affidavit sworn by Esther Wanjiru Kibuku on 21st June, 2021.

12. She deponed that she was surprised to learn that this court on 31st May, 2021 had removed her as an administrator of the deceased’s estate and appointed Jecinta Wairimu Kibuku as an administrator thereof.

13. That the court in its judgement relied on the affidavit she had sworn on 16th November, 2020 yet she had sought to have the same expunged from the record via her application dated 22nd February, 2021.

14. She deposed that an administrator cannot be accused of intermeddling with the deceased’s estate by involving the beneficiaries in the affairs of the estate and that all respondents save for those living out of the country have been involved in the affairs of the estate in one way or another.

15. That it is not true that Stephen Karanja Kibuki is guilty of intermeddling with the estate of the deceased and has not collected any rental income on behalf of the estate since the same is collected by capital home care on behalf of the estate.

16. That on the contrary the 2nd, 3rd and 6th respondents herein have consistently interfered with the management of the estate by collecting money from the estate without authority and are thus unsuitable to run the estate of the deceased herein.

17. She averred that that the deceased’s estate has remained intact under her care and there is no evidence on record to the contrary and that being a life tenant in the whole of the deceased’s estate she enjoys life interest and therefore this court lacks jurisdiction to order and or direct distribution of the estate to the children of the deceased as such distribution cannot be done during her lifetime.

19. She stated that as a life tenant she is also not required under the law to render any accounts and therefore the court orders dated 31st May, 2021 requiring her to render accounts within sixty (60) days should be set aside.

19. She averred further that she stands to suffer greatly in their hands of the new administrator as she is elderly and sickly and will be in constant need of medical care which will not be provided to her and therefore in the interest of justice this court should allow her application.

20. The respondents in opposition to this application filed a Replying Affidavit sworn by Jecintah Wairimu Kibuki on 14th July, 2021. She deposed that the application is incompetent, self-contradictory, abuse of the court process aimed at confounding, frustrating and delaying the administration of the deceased’s estate.

21. That advocates who have formulated the application are not properly on record and that it is unclear by whom or on whose behalf the said application has been brought.

22. That it is ironical, defeatist, bizarre and an afterthought for the applicants to suggest this Court lack jurisdiction to order distribution of the estate yet it is them as petitioners who invoked the jurisdiction of the court by petitioning court to appoint them as administrators and that the essence of the entire proceedings is the distribution of the estate as contemplated by the law.

23. She contended that this position cannot be upheld by the court because it departs from all the positions the Applicants have hitherto foreheld and can only be pursued in an appeal and that they are apprehensive that if the estate were left in the administration or hands of the applicant and the erstwhile administrators especially after the adverse finding of the court against them, the same would be vindictively wasted and will never be available for distribution.

24. She averred that the fact of appeal divests the Honourable Court of review jurisdiction therefore the application is incompetent and should be struck out.

25. The applicant Esther Wanjiru Kibuku swore a Further Affidavit on 2nd August, 2021 reiterating the averments contained in her Supporting Affidavit.

26. The respondents also filed a Supplementary Affidavit sworn by Jecinta Wairimu Kibuku on 3rd September 2021.

27. She deposed that the application is premised on the belief of the applicants that the court did not properly address her plight and therefore did not decide the matter of revocation properly and not on grounds that there is new evidence that was unavailable in the first instance and thus it should be addressed to the Court of Appeal and not this court in a review application.

28. At the close of pleadings the parties filed written submissions through their respective counsel.

SUBMISSIONS

Applicants Submissions to an Application dated 17th June, 2021

29. The applicant filed their submissions on 21st September 2021. He majorly reiterated the averments contained in his supporting affidavit. To support his contention that this court is clothed with jurisdictions to review and set aside its decision, the applicant relied on the case of JMK vs MWM & Another [2015] eKLR and provisions of Section 47 of the Law of Succession Act.

30. The applicant also submitted that this court has powers suo moto under Rule 44(5) of the Probate and Administration Rules where applicable to order that a notice be issued to any person on the application for Revocation and or Annulment of Grant to be served on such persons and that since this court adversely mentioned him in its decision ought to have invoked the same and have the said application served on all the beneficiaries to the estate herein including him.

31. In urging this court to allow his Application, the applicant cited the provisions of rule 73 of the Probate and Administration Rulesand submitted that his application has been filed with the sole purpose of meeting the ends of justice as he was not granted an opportunity to be heard before the court revoked the grant and thus he was denied a chance of being considered as an administrator. To bolster his submissions on the principles of natural justice and the right to be heard the applicant relied on the cases of Onyango vs A.G (1986-1989)EA 456 where the court observed that a decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated it matters not that the same decision would have been arrived at and Mbaki & Others vs Macharia & Another (2005)2 EA where the Court observed that a right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.

32. Respondents’ Submissions to the instant application are not on record.

Applicants’ Submissions to an Application Dated 21st June 2021

33. The Applicants filed their submissions on 20th September, 2021. They reiterated the averments in their Supporting Affidavit. Precisely, it was their position that the 1st Applicant under section 35 of the Law of Succession Act (LOSA) enjoys life interest in the whole of the estate of the deceased herein.

34. In urging this court to allow their application, they relied on numerous courts decisions i.e. Tau Katungi Vs Margrethe Thorning Katungi & Another [2014] eKLR, Bob Njoroge Ngarama vs Mary Wanjiru Ngarama & Another [2014] eKLR, Justus Thiora Kiugu & 4 Others vs Joyce Kiugu & Another [2015] eKLR, Re Estate of Jolly Jimmy Githieya(Deceased) [2013] eKLR which courts observed that Section 35 confers on the surviving spouse a life interest in the net intestate estate of the deceased and that distribution among the beneficiaries should only happen upon her remarriage or death.

Respondents’ Submissions to an Application dated 21st June 2021

35. The respondents filed their Submissions on 27th September 2021.

36. They submitted on the following issues;

1. Whether stay of execution should be granted;

2. Whether the orders issued by the court on 30th May, 2021 can and should be reviewed ,varied and or set aside;

3. Who should bear the costs herein?

37. On the first issue, the respondents argued that stay of execution will be allowed if a party meets the threshold set under order 42 Rule 6 of the Civil Procedure Rules.They submitted that the applicants intend to appeal on orders that are not capable of execution against themselves or the erstwhile administrators. That this court only gave orders as to the change of administration with specific directions on how fast the change should be effected and orders as to the rendering of accounts of the estate and therefore the applicants have not met the fundamental principles central to granting an order of stay of execution as they have failed to demonstrate how they would suffer irreparable harm and how their intended appeal would be rendered nugatory.

38. On the second issue, it was the respondents’ submissions that on 31st May 2021 this Honourable Court conclusively determined the matters arising in the instant application and rendered its judgement. That Stephen Kamonye being one of the beneficiaries preferred an appeal against that judgement by filing a notice of appeal dated 14th of June 2021 filed on 17th June 2021 and therefore the court is functus officio. That no application for review can be entertained by dint of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 2010.

39. They argued that that if the court was to relook at the case afresh, ,then the orders sought do not suffice as no new evidence of law or fact has been advanced by the applicants.

40. On the last issue, the respondents associated themselves with the sentiments of Justice Odunga In Republic Vs Speaker Of The Assembly Of Kitui Exparte Museemati;Independent Electoral & Boundaries Commission & Another (Interested Party (2019) eKLR where the court stated that:-

“…. when considering costs the court may not only consider the conduct of the party in the actual litigation, but the matters which led up to litigation ,the eventual termination thereof and the likely consequences of the order for costs. In my view section 27 of the Civil Procedure Act provides for the general rule which ought to be followed unless for good reasons to be recorded…”

41. The respondents cited the provisions of Section 27 of the Civil Procedure Act and urged the court to be guided by it and to also look at the circumstances that led to the institution of suit and make a determination on costs.

42. The issues that arise for determination are:-

1. Whether this by its Judgment of 31st May 2021 violated the rights of the widow as set out at Section 35 of the Law of Succession rights;

2. Whether this court has distributed the estate of the deceased in a manner prejudicial to the widow’s life interest;

3. Whether this court made any adverse order against Stephen Karanja Kibuku to warrant the orders sought.

43. With respect to the application dated 21st June 2021, the applicant seeks the orders that this court do review, vary or set aside the orders issued by this court on 31st May 2021.

44. The grounds are that;

1. The applicant is a widow of the deceased with a life interest in the whole residue of the estate of the deceased and it is not available for distribution in her lifetime or unless she remarries.

2. That this court lacks the jurisdiction to distribute the estate in her life time.

3. That there are issues with the respondents, who are guilty of intermeddling with the estate and the same time are guilty of material non-disclosure of material facts making them undesirable managers of the estate causing disharmony in the family.

45. This court made the following orders;

“a. The respondents within 60 days hereof to render an account as per Section 76(d) of the Law of Succession Act as read with section83(h) which states; to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account.

b. In the meantime the grant of letters of administration made herein on 7. 8.2006 and confirmed on 18. 1.2010 jointly to Esther Wanjiru Kibuku, Joseph Kamau Kibuku and Grace Wambui Kibuku be and is hereby revoked.

c. The 6th applicant JACINTAH WAIRIMU KIBUKU is appointed administrator pending the applicants’ proposal of additional names if need be within 15 days hereof. In default, a fresh grant to issue in the name of JACINTAH WAIRIMU KIBUKU

d. The administrators, within 45 days hereof, to file a fresh Summons for Confirmation of Grant on the basis of the assets and liabilities of the estate known to them within.

e. Taking into consideration the circumstances of this case the costs be in the cause.”

46. Nowhere in those orders has the court distributed the estate of the deceased hence the complaint that the court has violated the rights of the widow to her entitlement as a beneficiary to her husband’s estate is not correct.

47. The court revoked the grant made to the applicant and two (2) others, and revoked the Certificate of Confirmation of Grant.

48. The widow herein by virtue of the Letters of Administration issued to her, Joseph Kamau Kibuku and Grace Wambui Kibuku proceeded under Section 71 of the Law of Succession Act to file Summons for Confirmation of Grant. A Certificate of Confirmation of Grant was made to them.

49. A reading of Section 71(1) of the Law of Succession Act states; that the holder of the grant;

“….. shall apply to the court for Confirmation of Grant in order to empower the distribution of capital assets.”

50. The three proceeded to distribute the estate, in accordance with the Supporting Affidavit sworn on 14th January 2010 having deponed at paragraph 5;

“That the distribution and shares for all the persons beneficially entitled to the said estate has been ascertained and determined as follows.”

51. Except for Bahati/Kabatini/Block 1/459 which is give in Whole Share the rest of the estate is distributed in the following terms;-

Esther Wanjuru Kibuku To be held in trust forGrace Wambui Kibuku themselves and otherJoseph Kamau Kibuku beneficiaries.

52. Did this court do this? No, the widow herself and other administrators distributed the estate herself and the other two (2) administrators. Hence clearly it is not this court distributing the estate, it is the widow herself, and the presumption here is that she did so, very much aware of her rights under Section 35 of the Law of Succession Act.

53. Section 35 (2), (3) & (5) of the Law of Succession Act provides as follows:

“A surviving spouse shall, during the continuation of life interest provided by subsection

(1), have a power appointment of all or any part of the capital of the net intestate estate by way of gift taking effect among the surviving child or children, but that power shall not be exercised by will nor in such manner as to take effect at any future date. Where any child considers that the power of appointment under subsection

(2) has been unreasonably exercised or withheld, he or, if a minor, his representative may apply to the court for the appointment of his share, with or without variation of any appointment already made. Subject to the provisions of Section 41 and 42 and subject to any appointment or award made under this Section, the whole residue of the net intestate estate shall on the death, or, in the case of a widow, re-marriage of the surviving spouse, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.”

54. The Court in Tau Katungi vs Margrethe Thorning Katungi And Another, Succession Cause No. 1040 of 1991observed that:

“[19] Life interest confers a limited right to the surviving spouse over the intestate estate. He or she does not enjoy absolute ownership over the property. They cannot deal with as if it was their own. By virtue of Section 37 of the Act, a surviving spouse cannot during life interest dispose of any property subject to that life interest without the consent of all the adult children, co-trustees and the court. This is meant to safeguard the interest of the children who are the ultimate beneficiaries of the property the subject of life interest. It is in this respect that the life interest operates as a trust over the property the subject thereof, a trust held by the surviving spouse for the benefit of the surviving children.

[20] At life interest there is a convergence of the interests of the surviving spouse and those of the children. The device seeks to secure the interests of both. Where the deceased therefore is survived by both a spouse and children, the net intestate estate will not pass absolutely to either of the two categories of survivors during the life time of either. The holder of the life interest in this case is still alive, and has not remarried, she is therefore still entitled to the property at this time and the same cannot be conveyed to the children. Conversely, all the children of the deceased are still alive, consequently the widow cannot have the property absolutely to herself, but she is entitled to whatever income that derives from it.”

55. By proceeding under Section 71 of the Law of Succession Act, the administrators brought themselves within the ambit of Section 83 of the Law of Succession Act, specifically Section 83 (e), which require them, six (6) months from the date of the grant to produce to court,

“a full and accurate inventory of the assets and liabilities of the deceased, and a full and accurate account of all the dealings therewith upto the date of the account.”

56. Clearly therefore the applicant herein is not being forthright with the facts. Having distributed the estate, and having decided to hold it in trust for the other beneficiaries, the administrators created a duty to account. This court, in the judgment of 31st May 2021 found that they had failed in that duty, since 2010, and called them to account in accordance with law.

57. It can never be in the purview of this court to violate the rights of the applicant as the widow of the deceased as provided for under Section 35 of the Law of Succession Act.

58. This court has not done so, and the earnest submissions by counsel on behalf of the applicant are bereft of the facts. I have set out herein to fore.

59. There is the other issue of the applicant’s affidavit which she intended to expunge from the record. The court did make reference to that affidavit because it was and still is part of the record. This is what the court said:

“86. It is not in dispute that the 1st respondent is the widow of the deceased and hence has the priority under Section 66 of the Law of Succession Act to apply for and be granted letters of administration without the consent of the other beneficiaries. In this case she has sworn an affidavit confirming that indeed she and 2nd and 3rd respondents were granted letters of administration for the estate of her husband. It was her understanding that all her children had been involved and she was surprised that there were running disputes this late in the day. She, the one with the priority, as submitted by the 2nd respondent, confirmed that the 2nd respondent had hijacked the whole process. She was not satisfied with the manner in which he was running the affairs of the estate as she had expected that by now it would have been distributed to the beneficiaries. The 3rd Respondent administrator did not respond to the application.

87. From the 1st respondents affidavit it is clear that the administrators are not working together and the 2nd respondent has taken over the administration of the estate, contrary to the wishes of the widow and to the detriment of the other administrators and beneficiaries. Going by the Widow’s affidavit she has no trust in the second respondent as he has not acted to her expectations that by now the estate would have been distributed to the beneficiaries.”

60. As at the time of hearing the matters that led to the judgment of 31st May 2021 that affidavit was part of the record.

61. The application is therefore not merited.

62. With regard to the application dated 17th June 2021 Stephen Karanja Kibuku complaints of being condemned without having been heard in the following paragraphs of the judgment;

“37. That the administrators had allowed one of their siblings Stephen Karanja to take over the role of rent collections and was operating some of the estates bank accounts without the consent of the other beneficiaries, an act of intermeddling, and would only give financial assistance to the other beneficiaries only at demand and at his whim.

60. The Applicants argued that on the basis of material provided in both the application and the supplementary affidavit to the extent that the Applicants younger brother one Stephen Karanja was mandated by the respondents and without consent of the applicants to collect rental money from the estate’s rental properties and operate some of the estate’s bank accounts without providing the Applicants with the account records for the past ten (10) years, the said Stephen has been intermeddling with the estate with the sanction of the respondents herein because he is not an administrator of the estate. That ceding their mandate to the said Stephen was ultra vires their mandate as administrators and to the overall untrustworthy conduct of the Respondents in the administration of the estate.”

63. And that forms the grit of his application, for the avoidance of doubt, I reproduce the orders that I made in the judgment of 31st May 2021.

“a. The respondents within 60 days hereof to render an account as per Section 76(d) of the Law of Succession Act as read with section83(h) which states; to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account.

b. In the meantime the grant of letters of administration made herein on 7. 8.2006 and confirmed on 18. 1.2010 jointly to Esther Wanjiru Kibuku, Joseph Kamau Kibuku and Grace Wambui Kibuku be and is hereby revoked.

c. The 6th applicant JACINTAH WAIRIMU KIBUKU is appointed administrator pending the applicants’ proposal of additional names if need be within 15 days hereof. In default, a fresh grant to issue in the name of JACINTAH WAIRIMU KIBUKU

d. The administrators, within 45 days hereof, to file a fresh Summons for Confirmation of Grant on the basis of the assets and liabilities of the estate known to them within.

e. Taking into consideration the circumstances of this case the costs be in the cause.”

64. It is my view that the judgment is very clear; the issue is not the person of the applicant, but the activities of the 2nd administrator respondent with respect to the applicant herein.

65. I stated at paragraph 95 of the judgmentas follows;

“95. Though the 2nd respondent cannot be accused of intermeddling with the estate because he has grant of letters of administration. He did not contest the claim that he had given one Stephen Karanja, who is a sibling to him and the other beneficiaries, a free hand with some of the assets of the estate without the consent of the other beneficiaries.”

66. This is the only finding that the court made about the applicant. That the allegations leveled against the 2nd administrator with respect to his activities over the estate, had not been contested. There is no adverse finding or order made by this court against the applicant, the person who was on the carpet was the 2nd respondent. Clearly therefore despite the ardent submissions about the right to be heard, I do find that the application is not merited.

DATED, DELIVERED AND SIGNED AT NAKURU THIS 3RD DAY OF MARCH, 2022

MUMBUA T. MATHEKA

JUDGE

In the presence of;

Court Assistant Lepikas

MOM & co. advocates

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Sheth & Wathigo Advocates

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Waiganjo & Co. Advocates

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