[2023] KEHC 25717 (KLR)

In re Estate of Dedan Muchiri Wambu alias Muchiri Wambu alias Muchiri Wambu Waruhu (Deceased) (Succession Cause 95 of 2015) [2023] KEHC 25717 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25717 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 95 of 2015

FN Muchemi, J

November 16, 2023

IN THE MATTER OF THE ESTATE OF DEDAN MUCHIRI WAMBU alias MUCHIRI WAMBU alias MUCHIRI WAMBU WARUHU (DECEASED)

Between

David Mururi Muchiri

Applicant

and

Anne Wabera Muchiri

Respondent

Ruling

Brief facts 1. The application for determination is dated November 3, 2020 brought under section 76 (a), (b) & (c) of the Law of Succession Act and rule 44(1) of the Probate & Administration Rules. It seeks for orders for revocation of grant issued on May 18, 2015 and confirmed on June 21, 2016 in favour of the respondent.

2. The respondent opposed the application through a Replying Affidavit sworn on June 28, 2021.

3. The matter proceeded by way of viva voce evidence.

The Applicant’s case 4. PW1, the applicant, testified that the deceased died on January 15, 2003 and was survived by the following beneficiaries:-a.Anne Wabera Muchiri - widowb.Francis Mwangi – son (deceased)c.Beatrice Wakiuru – daughterd.Irene Njiriku Muchiri – daughtere.David Mururi Muchiri – sonf.Jackson Njogu Muchiri – song.Paul Gathathu Muchiri – sonh.Alice Nyawira Muchiri – daughteri.Agnes Wambu Muchiri – daughterj.James Kariuki Muchiri- son

5. The applicant further testified that the proceedings to obtain the grant were defective as the respondent did not involve him in filling the succession cause and further that she excluded him from inheriting from the deceased’s estate. He further contends that the respondent left out Plot No 21 Kangocho and Plot No 15/B Kangocho Market in the list of assets of the deceased. The applicant states that the family had consented through the area chief’s letter dated January 11, 2019 to surrender the deceased’s share in Plot No 21 Kangocho to him. He further states that the said parcel of land was given to him by his siblings but it was later taken away from him.

6. The applicant further testified that the deceased owned Plot No. 3 and 8 Kangocho market and that the ownership has already changed hands under the circumstances not known to him.

7. PW1 further testified that he was given LR No Iriani/Gatundu/62, together with his brother Peter Mwangi by his grandmother. On cross examination he testified that Plot No 15 was given to his brother Mwangi whereas he was given Plot No 21. He further stated that the deceased’s estate was distributed to his siblings who had not been given any land earlier.

The Respondent’s Case 8. DW1 further said that the applicant and his two brothers were given 2 acres of land from his grandfather’s estate and therefore he was not entitled to any more land.

9. DW1, the respondent testified that before instituting the succession proceedings she had a family meeting at home with her children and that they all proceeded with her to the area Chief’s office to obtain the requisite letter. Her evidence was that the applicant and his elder brother were given land by the deceased during his lifetime and thus during the distribution process she shared out only the estate amongst her children who were not given land by the deceased. The witness further testified that some beneficiaries from the extended family inherited directly from her father in law’s estate comprised in LR No. Iriani/Gatundu/62 which was sub-divided and allocated as follows:-a.David Mururi Muchiri (applicant) –LR No Iriaini/Gatundu/1170 – Two (2) acresb.Peter Mwangi Wambu – LR No Iriaini/Gatundu/1171 Two (2) acresc.Jedida Watetu Wambu – LR No Iriaini/Gatundu/1172 Two (2) acres

10. It was DW1’s further evidence that as a family, it was agreed before filing this case that Plot No 21 should go to the applicant and that the family were authorise the county council in writing to change ownership. Furthermore, Plot No 15B was to be allocated to Francis Mwangi Muchiri and that the family signed a consent to that effect. Thus, the respondent contends that there is no dispute that Plot No 21 belongs to the applicant and that he took possession of the plot in 2003 and has since enjoyed exclusive enjoyment.

11. DW2, Catherine Muthoni Mwangi, the wife of Francis Muchiri, a son of the deceased testified that her husband and the applicant were given two (2) acres each out of LR Nos. Kiini/Kibingoti/Nguguini/1580 and Iriani/Gatundu/1170. She further testified that her husband and the applicant got Plot Nos. 15 and 21 respectively from the deceased.

12. The witness further testified that following the death of the deceased, the respondent convened a family meeting at her home and informed them that she was filing the succession cause herein.

13. On cross-examination, DW2 testified that she married into the family in 1980 and she knows that their grandfather’s land was allocated to the applicant and her husband instead of the deceased who was the direct beneficiary. As such, her late husband and the applicant had been provided for sufficiently.

The Applicant’s Submissions. 14. The applicant submits that the proceedings to obtain the letters of administration intestate issued on May 18, 2015 were defective in substance for the respondent deliberately left out his name from the list of beneficiaries and neither was he informed of the succession proceedings in respect of the estate. Thus offending the provisions of rule 26 of the Probate and Administration Rules which require a petitioner of a grant to notify every other person entitled in the same degree as or in priority to the applicant. The applicant further submits that the respondent did not seek his consent nor was he given an opportunity to waive his right to inherit from the estate pursuant to rule 7(7) of the Probate and Administration Rules. To support his contention, the applicant relies on the cases of Re Estate of Gathure Mwaniki (Deceased) [2021] eKLR and Re Estate of Katana Vuko Wale vs Hamisi Katana Vuko (2021) eKLR and submits that the grant ought to be revoked as the proceedings for obtaining the grant were defective in substance.

15. The applicant further relies on the case of Re Estate of Julius Mwai Wahome (Deceased) [2020] eKLR and submits that the respondent concealed from the court that he was a beneficiary of the estate and deliberately omitted his name from the list of beneficiaries. He argues that by concealing such material facts, the court was unable to make a justified determination on the mode of distribution of the estate.

16. The applicant argues that the estate ought to be redistributed pursuant to section 35 of the Law of Succession Act. He further argues that since the respondent has waived her right to a life interest in the estate, the estate ought to be shared equally amongst all the children of the deceased. The applicant further contends that the assertions by the respondent that he is not entitled to a share of the deceased’s estate since he benefited from other ancestral land and plots, is discriminative and should not be a bar from his inheriting from his father’s estate.

The Respondent’s Submissions 17. The respondent submits that she filed the succession proceedings in the rightful manner after she convened a meeting at her home with all her children and the area chief was in attendance to notify them that she was filing the succession cause. The respondent further states that gazettement was done and no one raised an objection and, on that premise, the grant was confirmed at the expiry of 6 months. The respondent further contends that she did not exclude any of her children in the succession cause. In her Affidavit in support of the petition, the respondent points out that the applicant was given 2 acres in another ancestral land being LR No Iriaini/Gatundu/1170 and Francis Mwangi Muchiri was given LR No Kiini/Kibingoti/Nguguini/1580.

18. The respondent further argues that the omission of the names of the applicant and that of Francis Mwangi was not deliberate or intended to conceal material facts as they had as a family agreed that they ought not to be included in the proceedings as they had already been allocated of land by the deceased before he died.

19. The respondent states that the omission of Plot No 21 Kangocho is not a ground for revocation of grant as the law is clear on how to administer any asset left out the estate of a deceased. The respondent states that it is not in dispute that Plot No 21 was left to the applicant and he has been in control and use of since the deceased passed on. As such, the respondent argues that the application for revocation is not merited as she moved the court appropriately in the succession cause and ensured that all her children who had not received any land from the deceased during his lifetime got a share of the estate.

Whether the applicant has presented sufficient evidence to warrant revocation or annulment of the grant. 20. Section 76 of the Law of Succession Act gives the court the powers to revoke a grant provided the conditions stipulated therein have been met. It states that:-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 has ordered or allowed; 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; oriv.The grant has become useless and inoperative through subsequent circumstances.

21. The deceased died on January 15, 2003 and the respondent petitioned for grant of letters of administration on February 9, 2015 listing the survivors of the deceased in the petition as follows:-a.Anne Wabera Muchiri – wifeb.Beatrice Wakiuru Muchiri – daughterc.Irene Njiriku Muchiri – daughterd.Alice Nyawira Muchiri – daughtere.James Kariuki Muchiri – sonf.Jackson Njogu Muchiri – song.Paul Gathathu Muchiri – sonh.Dedan Muchiri Wakiuru – grandson

22. The respondent further listed the assets of the estate of the deceased as follows:-a.LR. No. Iriaini/Gatundu/155b.LR. No. Iriaini/Gatundu/901

23. The applicant argues that he was excluded from the list of beneficiaries being a son of the deceased. The court record shows that it is not disputed that the applicant is a son to the deceased. On further perusal of the petition for letters of administration dated February 6, 2015 he has not been listed as a surviving beneficiary of the deceased. Further he has not signed Form 38, consenting to the making of the grant of administration intestate of person of equal or lesser priority. Further, in the summons for confirmation of grant dated April 7, 2016, he is not included in the list of beneficiaries nor has he signed the consent to confirmation of grant. Rule 7(7) of the Probate and Administration Rules which provides :-"Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has:-a.renounced his right generally to apply for a grant; orb.consented in writing to the making of the grant to the applicant; orc.been issued with a citation calling upon him either to renounce such right or to apply for a grant."

24. Considering the facts of this application; the respondent ought to have included the name of the applicant and sought his consent to the making of grant and involved him in the distribution of the estate in order to comply with the requirements of the Probate and Administration Rules. However, the court needs to interrogate the motive of the petitioner in omitting the name of the applicant and his brother Francis Mwangi now deceased. The applicant want the grant issued to his mother revoked and the estate be shared equally amongst all the children of the deceased save for Plot No 21 Kangocho which he says was given to him by the deceased. It is not in dispute that the deceased during his lifetime bequeathed the applicant and his brother Plots Nos. 21 and 15B Kangocho respectively. The two sons were also given two (2) acres each from their grand father’s estate. This is supported by the minutes of the meeting held on February 27, 1994 and letter dated February 11, 2017 signed by all the family members in agreement that the said parcels of land ought to be retained by the applicant and the family of his later brother respectively. I have considered the mode of distribution as proposed by the applicant and find am of the view that it not fair to the beneficiaries. He proposed that he inherits Plot No. 21 absolutely and still benefit from the rest of the estate which comprises of 5 acres in equal shares with his siblings who did not get any share of the estate from the deceased during his lifetime.

25. Section 42 of the Law of Succession Act requires one to take into account any gift inter vivos when remitting the net intestate of a deceased. It provides:-1. Where-a.An intestate has, during his lifetime or by will, paid, given or settled any property to or for the benefit of a child, grandchild or house;b.Property has been appointed or awarded to any child or grandchild under the provisions of section 26 or section 35,That property shall be taken into account in determining the share of the net intestate estate finally accruing to the child, grandchild or house.

26. The failure to include all the beneficiaries in these succession proceedings was a contravention of rule 7 (7) of the Probate and Administration Rules. It is possible that the respondent did so in good faith in that she was aware that the applicant had been given Plot No 21 Kangocho and two acres of agricultural land by the deceased during his lifetime. The late Francis Mwangi’s widow DW2 and her children were also left out of these proceedings. However, the family of Francis were satisfied with what was given to them. All the same, it was wrong for the applicant to omit the names of her two sons from this cause. The two sons ought to have been included as beneficiaries in the petition so as to have a chance of renouncing their rights of inheritance based on the fact that they had received gifts inter vivos. In the event of failure to make such renouncement by the applicant and his brother Francis, the court would have been called upon to deal with the issues according to the law.

27. I have looked at the record and noted that the estate of the deceased in this cause had already been distributed to the beneficiaries who were not given gifts during their lifetime. The applicant does not deny that he was given the plot at Kangocho as well as two acres of land from his grandfather’s estate. It was the deceased who ought to have inherited the land given to the applicant directly from his own father. The applicant was not a direct beneficiary of his grandfather. In the respondent’s affidavit, she states that the respondent got two acres from sub-division of LR Iriaini/Gatundu/1580 which was given to him directly by his grandfather. Peter Mwangi and Jedidah Watetu also got two acres each from the same land. I suppose that this was an understanding within the family of the deceased herein. Francis Mwangi’s widow is content with what the deceased gave to her husband, that is Plot No 15 Kibingoti and two (2) acres of land out of Kiine/Kibingoti/Nguguini/1580. These gifts were not denied. In fact, the applicant admitted getting the plot from the deceased and the two-acre land from his grand parent.

28. I find that section 42 of the Act is applicable in this case in regard to the gifts given to the applicant and his later brother Francis Mwangi during the lifetime of the deceased.

29. As such I am of the considered view that although the applicant was not included in the Succession Cause, he was sufficiently provided for in the allocation of the land and the plot. The plot was given directly by the deceased. The law is clear that any gifts inter vivos must be taken into consideration in distribution of the deceased’s estate. The failure to include the applicant in these proceedings in my considered view, did not cause him any prejudice and is not sufficient as a ground to revoke the grant. The respondent cannot be said to have committed any fraud in the omission of her two sons who had already received one plot each agricultural land. The distribution by the applicant was meant to achieve equity among the beneficiaries. Had the two sons been included in these proceedings, the outcome in the distribution of the estate would not have been far from what it was at the confirmation of the grant. The respondent treated the children of the deceased fairly in these proceedings with full knowledge that her husband had provided for his older children during his lifetime. The omission of other plots of the deceased in these proceedings is not a ground for revocation. The law provides that review of the grant can be applied for any time after confirmation

30. It is my finding that the applicant has failed to prove fraud on part of the respondent. Neither has he proved that he was disinherited as claimed in his supporting and further affidavits.

31. I find no merit in this Summons for Revocation and I hereby dismiss it accordingly.

32. Each party to meet their own costs.

33. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 16TH DAY OF NOVEMBER,2023F. MUCHEMIJUDGE