[2022] KEHC 14780 (KLR)

In re Estate of David Njenga Ngacha (Deceased) (Miscellaneous Application 742 of 2008) [2022] KEHC 14780 (KLR) (Family) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14780 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application 742 of 2008

MA Odero, J

October 7, 2022

IN THE MATTER OF DAVID NJENGA NGACHA (DECEASED)

Between

Martin Ngacha Njenga

Applicant

and

Catherine Njoki Njenga

1st Respondent

Mary Nyambura Njenga

2nd Respondent

Tabitha Wairimu Njenga

3rd Respondent

Rachael Heta Njenga

4th Respondent

Judgment

1. Before this court is the Summons for Revocation of Grant dated 18th March 2022 by which the Objector Martin Ngacha Njenga seeks the following orders:-“1. Spent

2. That the court be please to make an order inhibiting all dealing relating to the estate of the deceased and in particular, Plot No. 441 vide a share certificate No. 1174 issued by Mwiki Company Ltd, Title No. Mavoloni Block 1/1143, Title No. Komothia/Kibichoi/830 and/or preserve the current status pending the hearing and determination of this summons.

3. That there be a declaration that any transfers effected by the Respondents and/or the beneficiaries in respect of the above sated land parcel numbers were/are illegal and null and void.

4. That the 1st and 2nd Respondents being the administrators of the estate be ordered to provide a full inventory of the estate and updated full accurate accounts of administration since they were issued with letters of administration.

5. That the costs of this application be provided for by the Respondents.”

2. The summons which was premised upon section 76 of the Law of Succession Act, Rule 44, 67 and 73 of the Probate and Administration Rules and all other enabling provisions of law was supported by the Affidavit of even date sworn by the Applicant.

3. The four (4) Respondents were all properly served with the summons as well as with notice of the Hearing date. The Respondents did not file any Reply to the summons for revocation of Grant nor did the Respondents appear on the hearing date in order to oppose the summons. As such, the matter proceeded as an undefended cause.

Background 4. This matter concerns the estate of David Njenga Ngacha (hereinafter referred to as ‘the Deceased’) who died intestate on 18th May 2020. According to the Chief’s letter dated 11th May 2007, the Deceased was survived by the following persons:-1. Catherine Njoki Njenga – Daughter2. Rachel Heta Njenga – Daughter3. Tabitha Wairimu Njenga – Daughter4. Mary Ngacha Njenga – Daughter5. Martin Ngacha Njenga – son (minor)

5. The estate of the Deceased was said to consist of the following assets:-a.National Bank Sharesb.Standard Chartered Sharesc.Kenya Airways Sharesd.Kenya Commercial Bank Sharese.Muchana Enterprises Ltdf.Mwiki Company Ltdg.Gathagako Matangiko Tradersh.Kiambu Murutani, Sacco Companyi.Komothai/Kibichoi/830

6. Following the demise of the Deceased Grant of letters of Administration Intestate was on 25th July 2008 issued to Catherine Njoki Njenga and Mary Nyambura Njenga (hereinafter ‘the Administrators’). Thereafter the Grant was confirmed and a certificate of confirmed Grant was issued on 19th December 2012.

7. The objector testified on his own behalf on 15th June 2022. The objector told the court that the Deceased who was his father had two (2) wives namely:- Naomi Wambui (Deceased) – who had four daughters (the Respondents herein)

Mary Muriithi Njenga (Deceased) who has one son (the Objector herein)

8. The objector confirms that the two Administrators Catherine Njoki Njenga and Mary Nyambura Njenga are his stepsisters. The Objector told the court that he was born on 27th May 1997. That the Grants in this matter were obtained and confirmed in the year 2008 while he was still a minor. He states that he was not aware of neither did he participate in the Successions proceedings.

9. The objector complains that he has not received any share of the estate of the Deceased. He states that he only became aware of this Succession Cause in September 2021 after he completed his university Education. That he then wrote to the Administrators seeking to be given his share of the estate in accordance with the rectified Grant dated 10th March 2014 which indicated that the estate was to be shared equally amongst all the beneficiaries.

10. The objector complains that some of the property belonging to the estate were sold by the Administrators without his participation and/or consent. That he was not allocated any share of the proceeds of sale. The objector alleges that the Administrators are in the process of disposing of Plot No. 44/Mwiki to his detriment. The objector prays that the court direct that he be given his share of the estate of his late Father. Additionally the objectors prays that the confirmed Grant issued to the Administrators be revoked on the following grounds -a.That the Respondents filed the cause herein secretly and fraudulently.b.That the proceedings to obtain the grant were defective in substance as the requisite consent from the Applicant was not obtained.c.That the said grant was obtained fraudulently by the making of false statements and by concealment from the court of important material facts to the case.d.That the Respondents have all along been distributing and disposing the deceased estate before the Grant was rectified on 10th March 2014 without consent from the applicant who is a beneficiary.e.That the Applicant had neither been involved in the proceedings nor has he been given any share of his father’s estate despite his share being provided for by the confirmed grant, further that he was not present nor his trustee during the confirmation of grant.f.That the 1st and 2nd Respondents have failed within six months from the date of confirmation of grant, or such longer period as the court may allow, to complete administration of the estate, and produce to the court a full accurate account of the completed administration, this is in violation of the law and amount to a solid ground for revoking a grant of administration.

11. Upon conclusion of the hearing, the parties were invited to file written submissions. The objector filed the written submissions dated 23rd June 2022. As stated earlier the Respondents despite having been served with both the summons and Notice of the hearing date failed to respond to the summons, failed to appear on the hearing date and failed to file any written submissions.

Analysis and determination 12. I have carefully considered this summons, the evidence adduced by the objector as well as the written submission filed in this matter. The Objector seeks to have the confirmed Grant issued to the Administrators revoked. A copy of the objectors Birth Certificate Serial Number 306718 appears as Annexutre ‘CN1’ to the Affidavit dated 20th June 2013. The said Birth Certificate indicates that the objector was born on 27th May 1997 and names the Deceased David Njenga Ngacha as the father of the objector.

13. The Grounds upon which a Grant may be revoked are set out in Section 76 of the Law of Succession Act Cap 160, Laws of Kenya which provides as follows:-“76. A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that 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)that 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)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; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

14. In the case of Jamleck Maina Njorogevs Mary Wanjiru Mwangi [2015]eKLR the court states as follows:-“The circumstances that can lead to the revocation of grant have been set out in Section 76 Law of Succession. For a grant to be revoked either on the application of an interested party or on the court’s own motion there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by making of false statement, or by concealment of something material to the case, or that the grant was obtained by means of untrue allegations of facts essential in point of law.”

15. The objector complains that the Administrators failed to disclose to the court that he was a minor at the time the Grant was being confirmed. On this basis, he submits that the confirmed Grant ought to be revoked.

16. I have carefully perused the record in this matter. I note that the objector was included as a beneficiary to the estate in the Chiefs letter dated 11th May 2007. Further, the objector has been included as a beneficiary to the estate in the confirmed Grant. Thus, he was not excluded at all.

17. The objectors complaint is that it was not indicated that he was a minor at the time the Grant was being confirmed. Firstly, I do not agree that the Administrators ‘concealed’ the fact that the objector was a minor. In the Affidavit in support of the Petition dated 30th January 2008 at paragraph 4(e) the objector is named and his age is indicated to be 10 years. Obviously, a person aged ten (10) years old is a minor. The age of the objector was clearly disclosed in the Supporting Affidavit. Therefore, the fact that he was a minor cannot be said to have been concealed.

18. Whereas it is true that the confirmed Grant dated 19th December 2012 did not indicate that the objector was a minor however on 20th June 2013 the Administrators did file a summons for rectification of Grant seeking to have the confirmed Grant rectified as follows:-“(a)To indicate that Martin Ngacha one of the beneficiaries is a minor.”

19. This summons seeking rectification of the confirmed Grant was allowed. The confirmed Grant was duly rectified on 10th March 2014. In the rectified Grant, the Objector Martin Ngacha is indicated to be a minor. Accordingly, I find no merit in the allegation by the objector that the Administrators failed to disclose the fact that he was a minor. There was no material concealment in this regard and I dismiss this particular ground raised by the objector.

20. The objector has also complained that to date he has not been given his share of the estate. He alleges that certain assets were sold by the Administrators without his participation and/or consent. The objectors has annexed to his supporting Affidavit an Agreement for sale dated 24th October 2013 (Annexture ‘MNN-4’) by which the Administrators sold Title Number Komothai/Kibicho/830 to one Benson Wakaba Mwangi for Kshs 14,550,000/-.

21. The second Agreement dated 20th February 2014 (Annexture ‘MNN-7’) relates to the sale by the Administrators of Title Number Mavoloni Block 1/1143 to one Mary Kamere Muli for Kshs 2,875. 000. Both Agreements have been executed by the Administrators and the respective Purchasers. The documents have not been controverted by the Respondents.

22. The Administrators/Respondents have not denied selling the two parcels of land for the amounts indicated. The said parcels of land form part of the estate of the Deceased and according to the rectified grant dated 10th March 2014 were to be divided equally amongst all the beneficiaries.

23. There is no evidence that the Administrators sought and/or obtained consent from the objector (who by then had attained the age of majority) or the other beneficiaries before selling off these assets. Neither is there any indication that the proceeds of sale were divided equally amongst all the beneficiaries.

24. The objector further complains that the Administrators have failed to provide to himself or to the court an inventory of the estate of the Deceased or full and accurate accounts of their administration of the estate.

25. Section 83 of the Law of Succession Act on the duties of personal representatives provides as follows: -“83. Duties of personal representatives Personal representatives shall have the following duties—(a)to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him;(b)to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;(c)to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);(d)to ascertain and pay, out of the estate of the deceased, all his debts;(e)within six months from the date of the grant, 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;(f)subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;(g)within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration;(h)to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, 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;(i)to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.”

26. The Administrators herein have not provided a full inventory of the assets and liabilities of the estate nor have they provided the court with a full and accurate account of their dealings with the estate from the time they obtained the Grant. Failure to provide such inventory and accounts is a ground for revocation of the Grant under section 76(d) of the Law of Succession Act. Accordingly, I find that in keeping the Objector in the dark and in failing to distribute equally the proceeds of sale of the assets comprising the estate, the Administrators have failed in their statutory duty to diligently administer the estate. I therefore find that there exists sufficient grounds to revoke the Grant issued to them.

27. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No. 158 of 2000 Mwita J made the following remarks on the guiding principles for the revocation of a grant. He stated:-“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

28. Rule 73 of the Probate and Administration Rules provides that:-“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

29. It is manifest that the Administrators in this matter have proceeded to administer the estate without including the Objectors herein. They have disposed of estate assets without involving the Objector and have failed to remit to the Objector his share of the purchase. In short, the Administrators have been acting as if the Objectors does not exist.

30. Finally, I find that this summon has merit and is allowed. This court therefore makes the following orders:-(i)The Grant of letters of Administration and the Certificate of Confirmed Grant issued to the Administrators (the 1st and 2nd Respondents herein) on 19th December 2012 and rectified on 10th March 2014 be and is hereby revoked.(ii)The Administrators (the 1st and 2nd Respondents) within sixty (60) days of the date of this judgment to provide a full inventory of the estate as well as full and accurate accounts of their administration of the estate from 19th December 2012 to date.(iii)Prayer (2) of the summons dated 18th March 2022 seeking cancellation of transfers is held in abeyance pending the filing of Inventory and Accounts as ordered in (ii) above.(iv)The Objector and/or any of the beneficiaries is at liberty to apply for letters of administration to the estate of the Deceased(v)This being a family matter I make no orders on costs.

DATED IN NAIROBI THIS 7TH DAY OF OCTOBER, 2022. …………………………………..MAUREEN A. ODEROJUDGE