[2022] KEHC 27024 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 3456 OF 2003

IN THE MATTER OF THE ESTATE OF ELIZABETH WANJIRU MUROKI (DECEASED)

WILLY KAIRU NGARI............................................APPLICANT

VERSUS

EVANSON MUINAMA MUROKI.....................1ST RESPONDENT

JOHN KINUTHIA MUROKI............................2ND RESPONDENT

JAMES KUNG’U MUROKI..............................3RD RESPONDENT

WILSON NG’ANG’A MUROKI.......................4TH RESPONDENT

RULING

1. The deceased Elizabeth Wanjiru Muroki died intestate on 29th June 2003 in Gikambura in Kiambu. He was the co-wife of Tabitha Wambui Muroki who on 5th December 2003 petitioned for the grant of letters of administration intestate. The deceased owned parcels Karai/Gikambura/700 and Karai/Lussigetti/T.143. She left no child, but Tabitha Wambui Muroki had six children. The petition was consented to by the children. The grant was issued to her on 18th March 2004, and confirmed on 19th January 2005. The entire estate went to her.

2. Tabitha Wambui Muroki died on 1st November 2011. Her children James Kung’u Muroki (3rd respondent) and Evanson Muinama Muroki (1st respondent) petitioned the Senior Principal Magistrate’s Court at Kikuyu in Succession Cause No. 358 of 2018, and on 27th May 2019 obtained a grant of letters of administration intestate. Her other children included John Kinuthia Muroki (2nd respondent) and Wilson Ng’ang’a Muroki (4th respondent).

3. On his part, the applicant Willy Kairu Ngari had petitioned the High Court in Nairobi in Succession Cause No. 1759 of 2005 and on 14th October 2005 obtained a grant of letters of administration intestate in respect of the estate of the deceased Elizabeth Wanjiru Muroki.

4. It is not disputed that the applicant’s grandmother was the stepsister of the deceased Elizabeth Wanjiru Muroki. His grandmother and the deceased shared the same father but had different mothers. He has in the application dated 16th December 2018 sought the revocation of the grant issued to the late Tabitha Wambui Muroki, which grant was confirmed. He brought the application against the respondents. I note that only the 1st and the 3rd respondents obtained a grant in respect of the estate of Tabitha Wambui Muroki and therefore are the only ones capable of suing or being sued on behalf of the estate. Consequently, the application as brought against the 2nd and 4th respondents was incompetent and is struck out with costs.

5. The applicant’s case was that when Tabitha Wambui Muroki filed the petition herein she did not seek his consent, and even at the point of the confirmation of the grant his consent was not sought. He stated in the affidavit, and testified in court, that he was the one who was taking care of the deceased and even when she died he was the one who buried her. He produced mortuary receipts, burial permit and funeral program. He stated that the deceased had left him with the original title deed of Karai/Gikambura/700. He produced it to court. When the deceased died, the respondents cautioned the title at the lands office. He wondered how the parcel got transferred to Tabitha Wambui Muroki without the lands office calling for the original title deed.

6. Citing section 39of the Law of Succession Act, his case was that he lies in the 4th degree of consanguinity of the deceased and had a priority claim to the deceased’s estate, when compared with the claim of Tabitha Wambui Muroki for the respondents.

7. According to the affidavit sworn by the 1st respondent on behalf of his brothers, it was because the deceased had no child that her co-wife (their mother) petitioned for the grant, was issued the grant and had inherited her property. Subsequently their mother willed the property to them and it was on that basis that they petitioned for the grant in Kikuyu Court. Their case was that the applicant was a total stranger to them and had no relationship to their late parents. They did not attend the oral hearing, although served.

8. On the evidence, it is clear that, under section 39(d) of the Act, the applicant was the deceased’s step-grandchild, the deceased being his grandmother’s step-sister. He lies in the 4th degree of consanguinity to the deceased. He has a priority claim to the estate of the deceased, and was entitled to be notified about the petition and application for confirmation, and his consent was required at each stage. Tabitha Wambui Muroki was guilty of material non-disclosure in regard to the existence of the applicant, and the proceedings leading to the petition and certificate of confirmation were substantially defective because of that and because his consent had not been sought or obtained.

9. Consequently, under section 76 of the Act, I revoke the grant issued to Tabitha Wambui Muroki on 18th March 2004, and confirmed on 19th January 2005. The transfer of the titles Karai/Gikambura/700 and Karai/Lussigetti/T.143 to Tabitha Wambui Muroki, or to any subsequent person, is cancelled. The Land Registrar Kiambu should be notified and is hereby ordered to return the titles into the name of the deceased Elizabeth Wanjiru Muroki.

10. Under section 47 of the Act and rule 73 of the Probate and Administration Rules, High Court at Nairobi Probate and Administration Cause No. 1759 of 2005and Succession Cause No. 358 of 2018 at Senior Principal Magistrate’s Court at Kikuyu are hereby called into this court and consolidated with this cause. The matter shall be mentioned on20th June 2022to confirm the files have been brought.

11. A fresh grant shall be issued to the appellant Willy Kairu Ngari who shall, within 30 days from today, file an application for the confirmation of the grant which he will serve on the respondents and all the children of Tabitha Wambui Muroki. He will also serve the same to his brothers and sisters, if he has any. Responses shall be filed within 30 days of service. Directions shall be taken on 20th June 2022.

12. Costs shall be in the cause.

DATED and SIGNED this …………………. day of MARCH 2022

A.O. MUCHELULE

JUDGE

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 28TH DAY OF MARCH 2022

A.O. MUCHELULE

JUDGE