[2022] KEHC 15830 (KLR)

In re Estate of Eunice Wanjeri Kibia (Deceased) (Succession Cause 1834 of 2000) [2022] KEHC 15830 (KLR) (Family) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15830 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1834 of 2000

MA Odero, J

November 4, 2022

IN THE MATTER OF THE ESTATE OF EUNICE WANJERI KIBIA (DECEASED)

Between

Florence Mumbi Gitau

1st Applicant

Grace Mwihaki Ndungu

2nd Applicant

and

John Njau Kibia

Respondent

Judgment

1. Before this court is the summons for revocation of grant dated February 8, 2019 by which applicant/objectors Florence Mumbi Gitau and Grace Mwihaki Ndungu seek the following orders:-“1. Spent2. spent3. That the grant was obtained by the making of false statements and/or by the concealment from the court of facts material to the cause.4. That specifically the applicants were not named as beneficiaries in the petition by the respondents yet they were entitled to the estate and/or the applicants who are daughters of the deceased have been left out of the distribution of the estate.

2. The summons which was premised upon section 76 of Law of Succession Act cap 160, Laws of Kenya, rules 44 and 55 of the Probate and Administration Rules was supported by the affidavit of even date sworn by the applicants.

3. The respondent/administrator John Njau Kibia vehemently opposed the application through his replying affidavit dated September 13, 2020. The application was canvassed by way ofviva voce evidence. Each side called one (1) witness in support of their case.

Background 4. This succession cause relates to the estate of the late Eunice Wanjeri Kibia who died intestate at the Kenyatta National Hospital on January 13, 1980. A copy of the Death Certificate Serial No 80126 marked as Annexture ‘A’ is annexed to the petition for grant of letters of administration intestate dated August 16, 2000.

5. In the said petition it was indicated that the deceased was survived by the following persons:-i.Mary Wambui Njukiii.Loise Wanjiru Ndungire - (Deceased)iii.Grace Mwihaki Ndunguiv.Florence Mumbi Gitauv.Ruth Wanjiru Kibia - (Deceased)vi.Mary Kanini Kibia - (Deceased)vii.Kamau Kibiaviii.Muturi Kibiaix.Samuel Gathaiya Kibia - (Deceased)x.Martha Wambui Ngaruiya - (Deceased)xi.John Njau Kibiaxii.Margaret Wakanyi Kibia

6. Following the demise of the deceased, her son Samuel Gathaiya petitioned for grant of letters of administration intestate in Kiambu Succession CMCC No 206 of 1993. He was issued with a grant on November 4, 1993 which Grant was confirmed on February 12, 1996. However following a summons for revocation of grant dated April 28, 1997 filed by John Njau Kibia ((the respondent herein), Mary Kanini Kibia, Grace Mwihaki Ndungu, Loise Wanjiru, Florence Mumbi Gitau and Mary Wambui Njuku, the grant issued to Samuel Gathaiya was revoked vide the ruling dated November 18, 1999 in which hon Justice Etyang (as he then was) found that the Magistrates court had no jurisdiction to handle the matter. In the same ruling the hon Judge held that married daughters were not entitled to inherit from the estate of the deceased.

7. Following the ruling of November 18, 1999 a fresh grant was issued to John Njau Kibia (the respondent) on February 15, 2001. That grant was confirmed on October 9, 2011 and was later amended on February 9, 2015. In that confirmed grant it was indicated that the estate of the deceased would be distributed in the following manner:-Name of Heirs Description of Properties Shares of Heirs

John Njau KibiaJohn Kamau KibiaMuturi KibiaMargaret Heta GathaiyaGrace Wangari KibiaMargaret Wakanyi KibiaHezekiah Kibia KaniniHenry Maina KibiaNancy Wanjiku Kibia LR Githunguri/Nyaga/680 0. 0971 Hectares0. 0971 Hectares0. 0971 Hectares0. 0971 Hectares0. 0971 Hectares0. 0971 Hectares

John Njau KibiaMargaret Wakanyi KibiaHezekiah Kibia KaniniHenry Maina KibiaNancy Wanjiku KibiaHezekiah Kibia Kanini LR Githunguri/Githunguri /2061 0. 0617 Hectares0. 0617 Hectares0. 0617 Hectares0. 0617 Hectares0. 053 Hectares

8. The applicants who are both daughters of the deceased have now filed this present application seeking to have the confirmed grant which had been issued to the respondent on February 9, 2015 revoked.

The Evidence 9. The 1st objector Florence Mumbi Gitau testified as PW1. She confirmed that she and the 2nd objector Grace Mwihaki Ndungu are both daughters of the deceased Eunice Wanjeri. The objector avers that the respondent proceeded to court and obtained the grant without informing and/or consulting the objectors.

10. The objectors assert that the deceased had a total of twelve (12) children who included five (5) daughters namely:-i.Mary Wambui Njukuii.Loise Wanjiru Ndungire – (Deceased)iii.Florence Mumbi Gitauiv.Mary Wambui Ngaruiya – (Deceased)v.Grace Mwihaki Ndungu

11. The objectors allege that only seven (7) out of the deceased twelve (12) children were included and participated in the succession cause but that the five (5) daughters of the deceased were excluded and sidelined. That the respondent obtained the grant by concealing material facts. That the objectors have not been included in the distribution of the estate of their late mother. The objectors state that distribution of the estate is not fair and pray that the grant issued to the respondent be revoked.

12. The respondent John Njau Kibia testified as DW1. He confirms that he is the administrator of the estate of the deceased who was his late mother. DW1 confirms that the deceased had twelve (12) children but states that six (6) of them have now passed away.

13. The respondent denies that he obtained the grant fraudulently. He insists that at the time of the demise of the deceased in the year 1980 the Law of Succession Act had not been enacted. That the applicable law at the time in succession matters was customary law.

14. The respondent reads malice in the filing of this summons for revocation of grant given that the objectors did not raise any issue when the grant was initially issued to their other brother Samuel Gathaiya. He argues that the summons has come too late in the day as it was filed several years after the Grant was issued.

15. The respondent denies that the mode of distribution of the estate is discriminative against the objectors as the deceased had given each objector 1. 5 acres of land during her lifetime. The respondent maintains that under kikuyu customary law the objectors being married daughters are not entitled to inherit from the estate of the deceased. He urges the court to dismiss this summons for revocation of grant.

16. Upon conclusion of the oral evidence the parties were invited to file and exchange written submissions. The objectors filed the written submission dated July 27, 2022 whilst the respondent relied upon the submissions dated July 25, 2022.

Analysis and Determination 17. I have carefully considered this summons for revocation of grant, the reply filed by the respondent the evidence adduced in court as well as the written submissions filed by both parties.

18. The objectors have sought to have the grant issued to the respondent revoked

19. Section 76 of the Law of Succession Act, cap 160, Laws of Kenya provides as follows: –

“76. Revocation or annulment of grantA 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.” 20. The objectors state that they were neither consulted nor involved in the succession cause. That the respondent in obtaining the grant failed to make full disclosure to the court regarding all material facts.

21. I have carefully and anxiously perused the record of this matter leading up to the issuance of the grant. Although the objectors were named as survivors of, the deceased in the petition dated August 16, 2000 the objectors did not sign any consent for the issuance of the grant. That consent dated December 4, 2003 was only signed by the following persons:-i.John Kamau Kibiaii.Muturi Kibia – (did not sign)iii.Margaret Wakanyi Kibiaiv.Kinuthia Kibochav.Waweru Mugo

22. I note that when the grant was issued to the respondent on February 15, 2021 the two objectors did not sign any consents yet they were recognized as beneficiaries to the estate. In the distribution of the estate contained in the confirmed grant dated February 9, 2015 the objectors are not included.

23. The respondent insists that the objectors were fully aware of the succession cause and claims that they did not object to the mode of distribution of the estate. There is no evidence to support this assertion by the respondent. The only way the objectors would have signified their consent to the entire process would be by signing of consents. In the absence of such consents, there is no proof that the objectors consented to the mode of distribution of the estate.

24. The law requires that consent be sought and obtained from all the beneficiaries. The respondent did not make it known to the court whether the objectors had either consented to the mode of distribution of the estate or whether they had renounced their right. By omitting the names of the objectors in the consent. I find that material facts were concealed from the court.

25. The respondent argues firstly that the objectors were not entitled to inherit anything as they had already received 1. 5 acres of land each from the deceased during her lifetime. PW1 admits that indeed she and her sister were given 1. 5 acres each by their mother as a sign of gratitude for looking after the deceased. In her own evidence the 1st objector admits that:-“It is true in 1979 my mother gave me and Grace (the 2nd objector herein) a portion of land. My mother also gave my brother a portion of her land which his next to the road .......................the three of us were given land because we were the ones in the home looking after our mother.”

26. The 1st objector goes on to assert that “even John Njau (the respondent) was given a plot while my mother was still alive”. The objectors take issue with the fact that they were excluded in the distribution of the estate yet the respondent who also received a gift of land from the deceased benefited from the estate.

27. The fact that the objectors were gifted with parcels of land by the deceased during her lifetime does not mean that they were are automatically excluded from receiving any benefit from the estate. What should happen is that the gifts given to the objectors are to be taken into account during the final distribution of the estate in line with section 42 of the Law of Succession Act. The respondent in his evidence concedes that he too received a gift of land from his mother while she was still alive. In his evidence the respondent states –“She [the deceased] gave them [the objectors] each 1. 5 acres and transferred title to them. My mother also gave Grace and Mumbi shares in her plot. My mother also gave me a plot 16x80. I have annexed the Green Card.......” (Own emphasis)

28. Why would the respondent exclude the objectors in the distribution of the estate on grounds that they had received land from the deceased during her lifetime yet he does not exclude himself despite admitting that he also received a gift of land from the deceased? It is clear the respondent has excluded the objectors merely due to their gender and marital status. Thus the decision of the respondent to exclude them altogether was wrong.

29. The respondent argued that as married daughters the objectors are not entitled under kikuyu customary law to receive any inheritance from the estate of their late mother. The respondent in his evidence stated that Hon Justice Etyang had held in a ruling dated November 18, 1999 married daughters were not entitled to inherit from the estate.

30. I have perused the annexed copy of the ruling delivered on November 18, 1999 in which the honourable judge held as follows:-“It is trite law under kikuyu customary law that married daughters cannot inherit their parents estates upon death of the latter. This was the law applicable to the estate of the deceased at the time of her death. Any applicants who were married daughters at the time of the deceased’s death cannot have a share of the estate. On this point, I uphold the submissions of the respondents through Mr MG Muhoro Advocate.

31. It is clear that the deceased died before the enactment of the Law of Succession Act in 1981. Does it then follow that the applicable law to her estate is the Kikuyu Customary Law? section 2(1) and (2) of the Law of Succession Act provides as follows:-“(1)Except as otherwise expressly provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of, and shall have universal application to, all cases of intestate or testamentary succession to the estates of deceased persons dying after, the commencement of this Act and to the administration of estates of those persons. (own emphasis)(2)The estates of persons dying before the commencement of this Act are subject to the written laws and customs applying at the date of death, but nevertheless the administration of their estates shall commence or proceed so far as possible in accordance with this Act.” (Own emphasis)

32. Section 29 of the Law of Succession Act which sets out the meaning of a ‘defendant’ under the Act does not discriminate amongst the beneficiaries of a deceased person on account of gender or marital status. This position has been upheld by the Kenyan courts.

33. In the case ofEliseus Mbura M’thara Vs Harriet Ciambaka & Another [2012] eKLR, the court held as follows:-“The law of Succession Act does not discriminate between gender in matters of succession or inheritance. Under the law of Succession Act and indeed under the Constitution a child is a child and every person has equal rights under the law irrespective of gender. TheLaw of succession Actdoes not discriminate between married or unmarried daughters but gives them equal rights to inheritance as the other children (sons) of a deceased person.” (Own emphasis)

34. In making any decision this court must adhere to the Principles of the Constitution of Kenya 2010. Article 27 of the Constitution outlaws all forms of discrimination by stating as follows:-“Equality and freedom from discrimination.27. (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms.(3)Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.(4)The state shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.(5)A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4). (Own emphasis)

35. Section 3(2) of the Judicature Act provides for the manner in which courts in this country are to apply african customary Law as follows:-“The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.”

36. Therefore while African Customary Law has a place in our society and is recognized by the Kenyan courts such customary dictates cannot be upheld by courts when they are unjust and/or discriminative. To deny the objectors their right to inherit solely on grounds that they are married daughters is in my view discriminative against a section of our society.

37. Hon Justice Luka Kimaru (as he then was) in the case of Peter Kiarumbi Kiengati & 4 Others vs Dr Ann Nyokabi Nguithi [2014] eLKR in debunking the logic that is commonly cited to disinherit married daughters stated as follows:-“As regard to the argument by the applicants that married daughters ought not to inherit their parent’s property because to do so would amount to discrimination to the sons on account on the fact that the married daughters would also inherit property from their parent’s in-laws, this court takes the view that the argument as advanced is disingenuous. This is because if a married daughter would benefit by inheriting property from her parents, her husband too would benefit from such inheritance. In a similar fashion, sons who are married, would benefit from property that their wives would have inherited from their parents. In the circumstances therefore, there would no discrimination. In any event, the decision by a daughter or a son to get married has no bearing at all to whether or not such son or daughter is entitled to inherit the property that comprise the estate of their deceased parents. The issues that the court will grapple with during distribution are the issues anticipated by Section 28 of the Law of Succession Act. This court is of the view that the time has come for the ghost of retrogressive customary practices that discriminate against women, which have a tendency of once in a while rearing its ugly head to be forever buried. This ghost has long cast its shadow in our legal system despite of numerous court decisions that have declared such customs to be backward and repugnant to justice and morality. With the promulgation of theConstitution2010, particularly article 27 that prohibits discrimination of persons on the basis of their sex, marital status or social status, among others, the time has now come for these discriminative cultural practices against women be buried in history.” (Own emphasis)

38. I therefore find that although the deceased died in the year 1980 before the Law of Succession Act was enacted, this court cannot uphold the retrogressive practice under customary law of denying married daughters the right to inherit property. Indeed under cross-examination the respondent admits that –“I am aware that now the constitution allows married women to inherit land.”

39. The respondent also concedes that he too received a gift of land from his mother whilst she still alive. These gifts given to the objectors, to the respondent, to any other beneficiary ought to be taken into account when determining the final distribution of the estate.

40. Finally although I have found that sufficient grounds exist to warrant the revocation of the grant, I am also mindful of the fact that this is a very old matter, which commenced in the year 2000. To revoke the grant now will take the mater several steps backwards as the parties have to begin the entire succession process afresh. Moreover, it seems that the objectors have no quarrel with the respondent remaining in place as the administrator of the estate, they merely object to their exclusion in the distribution of the same.

41. In line with the powers granted to this court under section 47 of the Act and rule 73 of the Probate and Administration Rules, I find it is more appropriate to have the confirmed grant reviewed to as to include the objectors in the distribution of the estate of the deceased.

42. Finally I direct that the Administrator file a summons for review/amendment of the grant and vary the mode of distribution of the estate of the deceased to include the objectors herein and to include all the beneficiaries save for those who specifically choose in writing to waive their right to inherit and taking into account the provisions of section 42 of the Law of Succession Act, to consider any ‘gifts’ made by the deceased during her lifetime. This being a family matter each side will meet its own costs.

DATED IN NAIROBI THIS 4TH DAY OF NOVEMBER, 2022. …………………………………MAUREEN A. ODEROJUDGE