[2022] KEHC 1743 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

SUCCESSION CAUSE NO. 236 OF 2009

IN THE MATTER OF THE ESTATE OF DAUDI GACHONDE (DECEASED)

PAUL GACHAHI GACHONDE………....…………………APPLICANT

VERSUS

ROSEBELL NJERI MURIUKI………………………1ST RESPONDENT

EMILY WAMBUI MURIITHI……………..……...…2ND RESPONDENT

EUDIA WANDIA GITAHI………………...…………3RD RESPONDENT

CATHERINE WANGUI WACHIRA……...……....…4TH RESPONDENT

RULING

Brief facts

1. The application for determination dated 29th September 2020 seeks for orders of reasonable provision to the applicant as a dependant of the deceased out of his net estate; for the removal of the name of Shelmith Wanja Gachonde (deceased) as a beneficiary from the Certificate of Confirmation of grant issued on 18th September 2009 and for rectification of grant issued on 18th September 2009 to reflect the orders sought should they be granted.

2. The respondents filed a Replying Affidavit dated 12th February 2021 setting out their grounds of opposition.

The Applicant’s Case

3. It is the applicant’s case that the deceased is his father and that he is a dependant and beneficiary of the estate. He further states that he was left out of during the proceedings to obtain the grant as well as in the distribution of the estate.

4. The applicant contends that some of the beneficiaries such as Vincent Wanjohi Gachonde and Shelmith Wanja Gachonde died after the grant was confirmed and as such their shares ought to be redistributed to other beneficiaries. The applicant urges the court to rectify the grant in order to redistribute the estate and give him his share for he was left out. As such, he proposes that the residue of the estate ought to be shared equally among the following beneficiaries:-

a) Estate of Vincent Wanjohi Gachonde

b) Emily Wambui Muriithi

c) Rosebell Njeri Muriuki

d) Eudia Wandia Gitahi

e) Catherine Wangui Wachira

f) Paul Gachahi Gachonde

The Respondents’ Case

5. It is the respondents’ case that they oppose the application based on the following reasons:- that the application is misconceived and incompetent as it is not premised on any provision of the law in the Law of Succession Act; that the applicant was not a party to the confirmation of grant proceedings and as such has no capacity to seek the removal of any beneficiary; the grant issued to Rosebell Njeri Muriuki and Vincent Wanjohi Gachonde cannot be rectified in the manner proposed by the applicant as the 2nd administrator, Vincent Wanjohi Gachonde is currently deceased; that no provision can be made for the applicant as a beneficiary of the deceased out of his net estate as there has never been legal documentation that the applicant is a beneficiary and dependant of the deceased’s estate; that the applicant filed summons for revocation of grant dated 5th July 2016 in this cause which was dismissed on 24th July 2020; that the present application has been brought after an inordinate and unreasonable delay of 22 years after the grant was confirmed on 18th September 2009; that though Vincent Wanjohi Gachonde and Shelmith Wanja Gachonde are deceased, their respective shares are legally due to their estate and dependants and that the applicant has not listed or identified any property/asset of the deceased’s estate to which he is claiming entitlement. As such, the respondents contend that the application is misconceived and an abuse of the court process and ought to be dismissed with costs.

6. Parties dispose of the application by way of written submissions.

The Applicant’s Submissions

7. The applicant submits that it is not disputed that he is a dependant of the deceased’s estate pursuant to the judgment delivered by the court on 24/7/2020. He further contends that he was not provided for in the distribution of the deceased’s estate and was left out during the confirmation and distribution of the deceased’s estate. He relies on Section 26 of the Law of Succession Act and states that because the court has already determined that he is a dependant of the deceased, he is entitled to a reasonable provision which should be equal to the shares of the other dependants.

8. The applicant further submits that Shelmith Wangui Gachonde, who was the deceased’s wife, is currently deceased and thus ought to be removed from the Certificate of Confirmation of Grant and the estate redistributed to the surviving dependants including the applicant. As such, he prays that his application be allowed as prayed.

Issues for determination

9. After careful analysis, the main issues for determination is:

a) Whether the prayer for reasonable provision is properly before this court, and; or the said prayer is merited.

b) Whether the applicant has legal capacity to remove a beneficiary from the grant, and if so, whether the prayer has merit.

c) Whether the grant issued on 18th September 2009 can be rectified under Section 74 of the Act.

The Law

Whether the prayer for reasonable provision is properly before this court.

10. Section 26 of the Law of Succession Act is instructive and it provides:-

Where a person dies after commencement of this Act and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fir shall be made for that dependant out of the deceased’s estate.

11. Section 30 of the Act stipulates that such an application ought to be made before the grant is confirmed. It provides:-

No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by Section 71.

12. In this cause, the grant was confirmed on 18th September 2009. The applicant brought an application for revocation of grant on 5th July 2016. In the said application, the applicant stated that the deceased was his father and thus he is one of the deceased’s children. Although the court did not revoke the grant, it found that for all intents and purposes the applicant was the deceased’s child and therefore he was entitled to a share of the deceased’s estate as the rest of the deceased’s children.

13. Section 29 of the Act “dependant” means:-

a) The wife or wives, or former wife or wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

b) Such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half sisters, as were being maintained by the deceased immediately prior to his death; and

c) Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.

14. Before this court deals with this prayer conclusively, it is important to determine whether this application is properly before the court.

Whether the applicant has legal capacity to remove a beneficiary

15. Section 82 of the Law of Succession Act provides that a personal representative shall subject to any limitation imposed by the grant, have the power to enforce by suit or otherwise, all causes of action, which by virtue of any law, survive the deceased or arise out of his death.

16. It is trite law that anyone seeking to do anything on behalf of a deceased person must first obtain the relevant authorization. In Otieno vs Ougo [1986-1989] EALR 468, the Court rendered itself thus:-

“An administrator is not entitled to bring any action as administrator before he has taken out letters of administration. If he does, the action is incompetent as of the date of inception.”

17. Similarly in the Court of Appeal decision in Rajesh Pranjivan Chudasama vs Sailesh Pranjivan Chudsama (2014) eKLR:-

“But in our view the position of the law as regards locus standi in succession matters is well settled. A litigant is clothed with locus standi upon obtaining a limited grant of Letters of Administration in cases of intestate succession.”

18. The grant of representation was issued to Rosebell Njeri Muriuki and Vincent Wanjohi Gachonde and was confirmed on 18th September 2009. Therefore as the personal representatives of the estate of the deceased, the two persons clothed with the legal capacity to institute any legal proceedings or causes of action which include bring an application for substitution or for re-distribution of the estate.

19. It is my considered view that the applicant lacks the legal capacity to bring this application. This being the position, it would serve no useful purpose to go into the merits of the application.

20. Consequently, I find that the application dated 29/09/2020 is incompetent and misconceived.

21. The application is therefore struck out with no order as to costs.

22. It is hereby so ordered.

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

F. MUCHEMI

JUDGE

Ruling delivered through videolink this 3rd day of March, 2022