[2024] KEHC 10501 (KLR)

In re Estate of Elizabeth Wanjiru Waweru (Deceased) (Succession Cause 606 of 2006) [2024] KEHC 10501 (KLR) (28 August 2024) (Ruling)

Neutral citation: [2024] KEHC 10501 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 606 of 2006

SM Mohochi, J

August 28, 2024

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

Between

Lucy Njoki Njeru

Applicant

and

Wanjiru Karanja

1st Respondent

Moses Kamau Waweru

2nd Respondent

Ruling

1. The Deceased the late Elizabeth Wanjiru Waweru died intestate on the on the 31st January 2006 leaving behind the following eight grown up children including the Applicant:i.Joseph Karanja Waweruii.Mary Wangui Waweruiii.Ann Wangari Waweruiv.Margaret Gakenia Waweruv.Jane Waithira Waweruvi.Moses Kamau Waweruvii.John Kimani Waweruviii.Lucy Njoki Njeru

2. The Applicant Petitioned grant of letters of administration and was appointed jointly with Moses Kamau Waweru as Co-Administrators on the 16th April 2007.

3. It is noteworthy that the two Co-Administrators and siblings were not cooperating and appeared to work in cross-purpose.

4. It would thereafter appear that, some siblings felt more secure they themselves being appointed as administrators resulting with the additional appointment of Joseph Karanja Waweru on the 4th December 2007 and the siblings seem to squabble there from on the distribution finally culminating in a judgment dated 23rd February 2017.

5. Subsequent thereto the 1st Respondent Wanjiru Karanja the wife of Joseph Karanja Waweru replaced his deceased husband and the fresh grant made on the 3rd March 2016 which was confirmed on the 23rd March 2017 listed the 1st Respondent-Wanjiru Karanja as the sole Administrator. The record remained silent as to the fate of the Applicant as an administrator.

6. The Applicant contested the outcome and judgment culminating in the filing of a notice of Appeal.

7. Subsequently on 27th October 2020, Moses Kamau Waweru successfully sought to be Appointed a Co-Administrator and the Grant was accordingly amended.

8. What remains pending is distribution of the estate as per the judgment of the Court. No Appeal is pending.

The Application 9. What is before this Court is the Summons for Revocation of Grant dated 10th June 2021 supported by the sworn Affidavit of Lucy Njoki Njeru seeking the following relief(s):i.Spentii.Spentiii.That the certificate of confirmation of Grant issued to Wanjiru Karanja on 23rd February 2017 be revoked.iv.That, the further amended Grant of Letters of Administration issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020 be revoked.v.That, the amended certificate confirmation of grant issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020 be revoked.

10. The Application is premised on grounds ingrained in the Applicant’s sworn Affidavit wherein she depones that the initial grant made on the 4th December 2007 Appointed her as an Administrator jointly with the late Joseph Benson Karanja.

11. That the Substitution Joseph Benson Karanja as a co-Administrator resulted in the unexplained omission of the Applicant from the Grant.

12. The Applicant further laments the subsequent enjoinment of Moses Kamau Waweru as a Co-Administrator without her knowledge and that she has never relinquished her Administrator ship.

13. The Applicant further laments of the current Administration of the estate with regards to rent collections from the commercial property forming part of the estate.

14. The Applicant posits that it will be prudent under the circumstances that, theCertificate of Confirmation of Grant issued on 23rd February 2017 and the Confirmed, Further Amended Grant issued on 27th October 2020 and Amended Certificate of Confirmation of Grant issued on 27th October 2020 be revoked for the benefit of the beneficiaries in this cause.

Applicant’s Written Submissions 15. The Applicant refined three (3) issues for consideration in submission:a.Whether the Further Amended Grant of Letters of Administration issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020 were properly obtained?b.Whether the orders sought in the Application are capable of being granted?c.Whether delay in rendering accounts warrants the Court to disallow orders sought in this Application?

16. As to whether the Further Amended Grant of Letters of Administration issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020 were properly obtained? It is the Applicant’s submission that, the 2nd Respondent ought to have moved the Court under Section 76 of the Law of Succession Act for revocation of summons issued to the applicant, apply for substitution as an administrator and have the summons confirmed. This application ought to have been served and the parties, including the applicant, given a chance to respond before the Court grants such an order it deems fit. Failure to serve the application for substitution upon the Applicant is improper and warrants this Court to revoke summons arising from such proceedings, the above never occurred.

17. That, it is not contested by parties that in the judgment by this Court on 23rd February 2017 and attached to the 2nd Respondent's Replying Affidavit confirmed the Applicant and the 1st Respondent as administrators of the estate which duties were to be performed jointly. It is equally not contested by parties that the confirmation has not been revoked or varied by this Court and any contrary assertions have not been exhibited.

18. That the Applicant has confirmed at paragraphs 1, 2, 3 and 4 of her supporting affidavit in support of summons for revocation of summons that she was appointed as administrator of the estate together with one Joseph Benson Karanja, whom upon demise, an application was made for application for substitution was issued on 3rd March 2016 and confirmed on 23rd February 2017. However, it came to her realization that, upon issuance of the said certificate of confirmation of grant, her name was willfully omitted.

19. That the Applicant came to learn of another Further Amended Grant of letters of administration was issued on 27th October, 2020 to the respondents and a Certificate of Confirmation of Grant also issued the same day. The Applicant has never relinquished her right as an administrator of the Estate of Elizabeth Waweru which information is within the knowledge of the respondents.

20. That the 1st Respondent has sworn at paragraph 26 of her Replying Affidavit that she was neither served with the pleadings nor notified of the proceedings leading to the inclusion of the 2nd Respondent as Co-administrator. This is confirmed by the Applicant at paragraphs 5 and 6 of her affidavits in support of summons for the revocation of grant that she never relinquished her rights as an administrator of the estate and therefore the further amended grant of letters of administration was issued on 27th October, 2020 must have been irregularly obtained and should be revoked forthwith.

21. That the 2nd Respondent failed/ignored to exhibit evidence of an application for substitution that led to his inclusion as a co-administrator. The exhibited applications marked annexures MKW-3 dated 24th March 2021 and 20th March 2021 seek to compel the Applicant to render an account on the estate and not substitution of administrators.

22. The Applicant therefore submit that in the absence of an application for substitution of administrators, failure to serve the application upon the Applicant and proof of proceedings leading to the inclusion of the 2nd Respondent as a co-administrator, there is only one conclusion: that the Further Amended Grant of Letters of Administration issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020 were issued/obtained irregularly and should be revoked by this Court.

23. As to whether the orders sought in the Application are capable of being granted? The Applicant submits that, this application is anchored under Section 76 of the Law of Succession Act, Cap 160, Laws of Kenya. The said provision states as follows:“76. Revocation or annulment of grant 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

24. The Applicant relies on Section 76(a) (b) and (c) of the Law of Succession Act and has sworn at paragraphs 2, 3, 4, 5 and 6 together with the 1st Respondent, they were confirmed administrators of the estate which duties were to be performed jointly through an Amended Grant issued on 3rd March 2016 and confirmed on 23rd February 2017. That the Further Amended Grant of Letters of Administration issued on 27th October, 2020 and confirmed the same were only brought to her attention upon being on her. She is not aware of any proceedings leading to issuance of the same. The 1st Respondent confirmed this at paragraph 26 of her Replying Affidavit the she lacked knowledge of the proceedings leading to the inclusion of the 2nd Respondent as an administrator of the estate.

25. That, while the 2nd Respondent swore at paragraph 6 of his replying affidavit that he applied to be enjoined as co-administrator because property LR 6585/1117/ Nyahururu Municipality and LR 6585/3/111 Nyahururu Municipality was being subjected to waste, he failed to exhibit such an application and/or proceeding leading to his inclusion as an administrator of the estate. The Applicant submit that, failure to exhibit the same, the Court should find that his inclusion was irregular and marred with misrepresentations.

26. The Applicant has further sworn in paragraph 8 of her Supplementary Affidavit that she never relinquished her duties to one John Kimani Waweru as contained in annexure MKW-5 of the 2nd Respondent's replying affidavit.

27. That this Application seeks to primarily revoke the Further Amended Grant of Letters of Administration issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020 on the grounds that it was obtained fraudulently by the making of a false statement or by the concealment from the Court of something material to the case, 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 and that the proceedings to obtain the grant were defective in substance. This Court has jurisdiction to grant these and thus pray the application is allowed.

28. That, having established the Further Amended Grant of Letters of Administration issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020 was issued irregularly, this Court should proceed to revoke the Amended Certificate of Confirmation Grant issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020.

29. As to Whether delay in rendering accounts warrants the Court to disallow orders sought in this Application? The Applicant contends that, the 1st Respondent has sworn at paragraph 22 of her replying affidavit that, the Applicant has come to Court with unclean hands as she should have first complied with the Court Order on rendering accounts before she can apply for revocation of the grant. The 2nd Respondent equally has sworn at paragraph 4 of his replying affidavit that by the judgment delivered on 23rd February 2017, the Applicant was ordered to render accounts of the estate within three months which she has failed to comply with.

30. The Applicant contends that; the Respondents have a clear remedy under Section 83 (g). (h). (1) and 94 of the Law of Succession Act to compel the Applicant together with the 1st Respondent to produce an Inventory and render accounts on the estate. That notwithstanding, the Applicant has sworn in paragraph 5 of her Supplementary Affidavit, preparation of records of accounts in regards to the rent income from Plot No. 6585/46/VI is ongoing and accounts shall be rendered.

31. In conclusion, the Applicant has established that indeed leading to the issuance of the Further Amended Grant of Letters of Administration issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020 did not involve her and was obtained by means of an untrue allegation of a fact and this Court should revoke the grant. Consequently, the Amended Certificate of Confirmation of Grant issued to Wanjiru Karanja and Moses Kamau Waweru on 27th October 2020 be revoked.

1st Respondent’s Case 32. The 1st Respondent opposed the application through her undated Replying Affidavit filed on 15th July 2021 and written submissions dated 2nd June 2022, on the following summarized grounds as follows:i.The Applicant has failed to discharge her duties under Section 83 of the Law of Succession Act, particularly failure to render accounts on the Estate as directed in the judgment delivered 23rd February 2017. ii.The Applicant has come to Court with unclean hands as she should comply with the Court order on rendering accounts before she can apply for revocation of the grant.

33. She concurs with the Applicant that the pleadings and proceedings leading to inclusion of 2nd Respondent as co-administrator were never served upon the Applicant.

34. That, a Grant of Letters of administration in respect of the estate of the late Elizabeth Wanjiru Waweru was issued to her late husband and the Applicant herein in 4th December 2007 as co- administrators.

35. That, the parties could not agree on the mode of distribution of the estate and more importantly the co-administrators could not work together.

36. That, her late husband moved to Court and filed an affidavit of protest to the mode of distribution.

37. That, unfortunately before the application could be determined her husband passed on, on the 31st July 2014 and she was subsequently issued with letters of administration to his estate.

38. That, in order to safeguard his interests as a beneficiary in his late mother's estate, she made an application for substitution as a co-administrator, an application which surprisingly was opposed by the applicant.

39. That, after considering the submissions of the parties, the learned Judge, A.K. Ndung'u J. allowed the application for substitution on 3rd March 2016.

40. That, since the administrators and the beneficiaries could not agree on the mode of distribution, the Honourable Justice A.K Ndungu gave directions for parties to file their submissions upon consideration of which he would deliver judgement distributing the estate. These directions were never contested.

41. That, in the judgment rendered on the 23rd February, 2017 at paragraph 26, thereof the Court ordered the Applicant to give an account of all the rents collected since the demise of the deceased herein, within three months of delivery of the judgment and to-date no such accounts have been filed in the Court as directed by the Court neither have I been served with any such accounts.

42. That,after delivery of the judgment, she instructed her advocates on record to extract a Certificate of Confirmation of Grant in tandem with the said judgment which was done and the grant was duly signed by the learned Judge and certified by the Deputy Registrar of the Court.

43. That,she is shocked at the Applicant's lack of candor when she deposes that she was unaware of the said grant because it was part of the Court's record and still remains part of the record.

44. That, on 15th March 2017 her advocates were served with a Notice of Appeal and a letter bespeaking proceedings and judgment by the firm of Mohammed Muigai Mui Advocates. They cannot therefore say that they were not aware of the said grant as the proceedings sought were prepared and certified for their collection on 3rd May 2018 (annexed and marked 'WK1’ copy of the notice of appeal dated 9th March 2018 and the letter dated 8th March 2018).

45. That, the Applicant never filed the record of appeal and so on 8th March 2017, her advocates successfully filed an application under Rule 82 and 83 of theCourt of Appeal Rules seeking orders that the notice of appeal be deemed to have been withdrawn.

46. That, after being served with the application, counsel for the Applicant wrote to her advocates on record stating that they wanted to withdraw the notice of appeal and sought our indulgence not to insist on costs

47. That, she agreed to forego her costs and gave her advocates the go ahead to file a consent in the registry to that effect.

48. That, she has not been updated on whether the Notice of Appeal was withdrawn as per the consent order.

49. That, she wishes to inform the Court that as noted by the learned Judge in the said judgment, the estate of the late Peter Waweru Gathirimu who died in 1988 or thereabouts still remains largely undistributed, and the Applicant herein has been collecting the rent from the properties left behind without rendering any accounts and she would continue to benefit if that state of affairs remains in perpetuity.

50. That, she has neither collected nor touched a single cent from the estates of both her deceased parents in law as she has been waiting for the Applicant to render the accounts as ordered by the Court.

51. That,the Applicant has not come to Court with clean hands as she should first comply with the Court order on rendering accounts before she can apply for revocation of the grant.

52. That, she recently embarked on the sub-division of Title No. Laikipia Lariak/277 using her own funds and the mutations have already been done and all that remains are the registration of the mutations and transfer to the respective beneficiaries as per the certificate of confirmation.

53. That,neither the Applicant nor the 2nd Respondent have any interest in that property and the Court should allow her to complete the process.

54. That, the Applicant only wants to continue collecting rent to the exclusion of other beneficiaries without accounting for the same as she has done for the last three decades.

55. That, she has no problems with the 2nd Respondent's appointment as a co- administrator so that he can oversee the day to day administration of and proper use of the funds collected as rent although she was not made aware of or served with the proceedings leading to his inclusion

56. The 1st Respondent implores the Court to find that, the Applicant's intention is to have both estates remain undistributed so that she can continue enjoying the rent to the exclusion of other beneficiaries.

57. That, she has not done anything outside or against the Court's Judgement dated 23rd February, 2017 which would warrant revocation of the grant. Failure to have the Applicant's name in the certificate of confirmation of the grant is not a ground for revocation as the same is a matter of amendment of the grant.

58. She prays that the summons for revocation of a grant dated 10th June 2021 be dismissed with costs; the same having been made in utter bad faith.

2nd Respondent’s Case 59. The 2nd Respondent opposed the Application through his Replying Affidavit sworn on 5th July 2021 and filed written submissions1st day of August 2022, on the following summarized grounds as follows:i.The Applicant has neglected/failed to discharge 83 of the Law of Succession Act, particularly failure to remit accounts on the Estate as directed in the judgment delivered 23rd February 2017. ii.That he filed an application dated 24th March 2021 seeking an account from the Applicant for monies received for the last 14 years which monies the Applicant and the agent have not given an account.

60. The 2nd Respondent submits that,as an Administrator, she had the responsibility inter alia is to Court, if required by the Court, either any interested party in the estate, and liabilities of the deceased and therewith up to the date of the of its own motion or on the top a full and accurate inventory of assets and a full and accurate account of all dealings

61. That, the Applicant, together with the real agent estate, Judika Real Estate Agency failed to keep proper account for the rent received from the property known as plot no.6585/46/v1 and 6585/111/7.

62. That, the Applicant delegated her duties to one John Kimani Waweru and agent had also been disbursing money collected from rent without authority.

63. As the administrator, the Applicant was obligated to ensure that proper, accurate and up-to date accounts for the estate were kept.

64. The duty of administrators is to ensure that the estate of the deceased is not wasted. From the Applicant’s application, there arises issues to be settled by this Honourable Court-:i.Whether the Applicant failed as an administrator in preserving the estate of the deceased?ii.Whether the Respondents have been rightfully appointed as administrators to the estate of the decease?

65. On the 1st issue as to whether the Applicant failed as an administrator in preserving the estate of the deceased? The 2nd Respondent submits that, from various applications, the Applicant is portrayed to have failed in the administration of the estate. This is demonstrated by the dilapidation of the conditions of premises Plot No.6585/111/7(posho mill). The photographic evidence exhibited in Court show that the property has been left for a long time without repairs.

66. That, the Respondents had to intervene and ask for funds for repairs. This request went unanswered and the Applicant failed to submit to the Respondents the accounts of the rent received for over 14 years. This triggered the Respondent to approach this Honourable Court to compel the Applicant to give an updated account of the estate.

67. That, the Applicant failed to ensure the estate does not go to waste by lack of making sure the premises are well repaired and that the rent paid is accounted for. It is on this ground that the letters of confirmed grants were issued appointing new administrators who would ensure that the estate does not go to waste and are well maintained and presented to the Court, when required as well as to other beneficiaries.

68. The real estate agent had resorted to use of the estate’s money without authority which amounted to intermeddling with the estate.

69. That, Section 45 of the Law of Succession Act is to the effect that no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with any free property of a deceased person.

70. The Applicant was therefore rightfully removed from the administration of the estate by reason of intermeddling, that the law of succession states:“Any personal representative who, as regards the estate in respect of which representation has been granted to him.a)Willfully or recklessy neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage, orb)Willfully fails to produce to the Court any such inventory or a/c as is required by the provisions in section 83 of paragraphs (e) and (g) Shall be guilty of an offence as laid down in section 45(2) para(a) and (b)"

71. The Applicant had thus failed in proper administration of the estate of the deceased putting the estate to the risk of being wasted.

72. On the 2nd issue as to whether the Respondents have been rightfully appointed as administrators to the estate of the deceased? It is the 2nd Respondent submission that he is the son of the deceased and therefore has right to be appointed as an administrator and that, Section 29 of the Law of Succession Act lists the dependants of the deceased and have a right to apply to administer the estate of the deceased who is their mother.

73. That, the Applicant will not suffer any loss or damage if the Court fails to revoke the grant. She is still among the beneficiaries having the estate being administered by the Respondents.

74. That the Respondents have rightfully and under due process applied for the grant of confirmation of grant and the certificate rightfully issued and that, the Respondents are rightfully administering the estate by virtue of the Court granting a certificate of confirmed grant applied duly.

75. The 2nd Respondent therefore prays that; the Court declares the Respondents the administrators of the estate of the deceased. The Applicant should be compelled to provide the account of the estate for the previous 14 years and make good any loss suffered by the estate.

76. The Respondent prays that the application dated 10th June 2021 be dismissed with cost.

Analysis & Determination 77. Section 47 of the Law of Succession Act provides for jurisdiction of the High Court in respect of matters falling under the Act as follows: -“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient”.

78. 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.

79. The power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the Court to invoke Section 76 and order for revocation or annulment of 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.

80. Generally, a Trial Court has jurisdiction to revoke a grant if the conditions under Section 76 are satisfied. This is in furtherance of the probate Court’s duty to distribute free property of the deceased to the rightful beneficiaries.

81. However, a clear look at the grounds in support of the applications for revocation, the Applicant seeks revocation of the grant having been erroneously removed as an administrator in an application for substitution of a deceased an administrator, she ought not have been affected.

82. I have considered the Arguments in support for the Application dated 10th June 2021 and arguments in opposition.

83. This Court notes unfortunately that the Applicant and the 2nd Respondents are all siblings of the deceased and appear to have had disagreements relating to this probate from the onset. It is equally unfortunately noted that despite the Court prodding the Administrators to share the status of distribution of the estate, so far nothing was forthcoming in this regard and thus the Court can safely conclude the estate remains undistributed since the rectified grant was confirmed on the 27th October 2020.

84. The failing to undertake the distribution by the 1st and 2nd Respondent since 27th October 2020 and their continued silence is something that is troubling and necessitating the immediate intervention of the Court.

85. As to the summons for revocation, this Court is unpersuaded as that the Applicant has satisfied the conditions to enable revocation. This Court notes that the proceedings of the 23rd March 2017 resulting in the Applicant ceasing from being an administrator was a grave error committed by the Court, the Applicant status as an administrator cannot change without an explicit pronouncement by the Court. In this instance no such pronouncement was made.

86. This Court equally notes that, the grave error could have easily been resolved with a summons for rectification. This Court is unpersuaded that revoking the grant shall catalyze the distribution of the estate.

87. I am therefore not persuaded by the Applicant’s arguments that the grant was obtained improperly. I find that pursuant to Section 76 of the Law of Succession Act, the Applicant has not satisfied the Court or made a case to warrant the revocation of the grant. In this regard, the application dated 10th June 2021 must fail.

88. Consequently, I hereby dismiss the application dated 10th June 2021.

89. I am however persuaded to Rectify the subsisting grant dated 27th October 2022 and resultant amended certificate of confirmation of grant dated 27th October 2022.

90. Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules bestows upon a Succession Court inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the Court process. Such powers include rectification of grant which under normal circumstances would remedy the situation.

91. This Court thus invokes its inherent powers and an order is hereby issued rectifying the grant as confirmed to including Lucy Njoki Njeruas a Personal representative together with Wanjiru Karanjaand Moses Kamau Waweru.

92. The Administrators are expected to distribute the estate of the deceased within six months from today without fail.

93. With regards to the squabbles relating to rent collections that remain unaccounted, this Court shall entertain application(s) relating to failure to account after the distribution of the assets.

94. With regards to agitation for costs, I direct parties to bear their own costs this being a family matter.It is so ordered

DATED, SIGNED AND DELIVERED AT NAKURU ON THIS DAY OF 28TH DAY OF AUGUST, 2024. ..................................S. MohochiJUDGE