[2024] KEHC 8387 (KLR)

In re Estate of Evanson Karuga Gatura (Deceased) (Miscellaneous Succession Application E072 of 2023) [2024] KEHC 8387 (KLR) (3 July 2024) (Ruling)

Neutral citation: [2024] KEHC 8387 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Succession Application E072 of 2023

HM Nyaga, J

July 3, 2024

IN THE MATTER OF THE ESTATE OF EVANSON KARUGA GATURA (DECEASED)

Between

Harriet Mugure Gichura

1st Applicant

Joyce Njeri Mwai

2nd Applicant

and

SamuelKimani Karuga

1st Respondent

George Gaturu Karuga

2nd Respondent

Leah Wanjiru Karuga

3rd Respondent

Ruling

1. Vide summons dated 15th December,2023 brought under Sections 47, 76 and 83 of the Law of Succession Act and Rules 44 and 73 of the Probate and Administration Rules, Sections 1A &1B of the Civil Procedure Act, the Applicants seek for Orders:-a.That the Grant of letters of Administration dated 10th December, 2018 and the Certificate of Confirmation of grant dated 9th July, 2019 issued in Nakuru CM’S Succession Cause Number 425 of 2018 be revoked and/or annulled.b.That pending the determination of this Application, the Honourable Court be pleased to order stay of sale of any of the estate’s properties or any distribution thereof or any enforcement of any acts consequent and/or pursuant to the said grant and the certificate of confirmation of grant.c.That the Respondents be ordered to file in court a full and accurate inventory of the assets of the deceased as well as a full and accurate account of all their dealings therewith.d.That costs of this Application be provided for.

2. The Application is premised on the grounds on its face and the supporting affidavit sworn by the 1st Applicant, Harriet Mugure Gichura. She deposed that the Respondents were issued with grant of letters of Administration to the deceased’s estate on 10th December, 2018 and the same was confirmed on 9th July, 2019. She averred that the proceedings leading to the making of the grant were irregularly commenced before the Chief Magistrate’s Court in CM Succession Cause No. 425 of 2018 by concealment of material facts as the value of the deceased’s half share interests in Nakuru Municipality Block 10/85 and Nakuru Municipality Block 9/17 were omitted and the list of Assets of the deceased’s beneficial interest in all that parcel of Land known as Kericho/Sorget/Kalyet Block 7(Yetu)/10 measuring 21. 71 Ha(50 acres) and deceased’s parcel of land situated in Jambo Farm were excluded.

3. The applicant further deponed that Nakuru Municipality Block 10/85 and 9/17 are prime properties situated within the Central Business District of Nakuru City and their aggregate value exceeds Ksh.150million. That Kericho/Sorget/Kalyet Block 7(Yetu)/10 has a value of over Ksh.30 million while the Jambo Farm Property has a value exceeding Ksh.40 Million. That as such, the value of the deceased’s estate was way beyond the pecuniary jurisdiction of the Chief Magistrate, thereby rendering proceedings therein defective and a nullity.

4. It was her averment that since the year 2019 when the Grant was confirmed, the administrators have proceeded to deal with the estate’s assets fraudulently and opaquely as they have not accounted for Ksh.200, 000/= given to her out of aggregate sum of Ksh. 2,287,514/= held in the deceased’s KCB account, Londiani Account No. 1103320327 & Barclays Nakuru East Account No. 0278021904.

5. She further averred that despite demand notice addressed to the Respondents by her advocate, the administrators have refused to render an account for the money held in KCB account, Londiani A/C No. 1103314718; Standard Chartered Bank, Nakuru A/C No. 015015469450; Post Bank, Londiani A/C No. 596/9; Savings & Loan Ltd A/C No. 015101075638, Nairobi; National Bank Head Office A/C No. 124353506400; KCB Londiani A/CV No. 138067970.

6. She also contended that the administrators have failed to account for the rental income derived from Nakuru Municipality Block 10/85, Nakuru Municipality Block 9/17 and L.R No. 584/153 Londiani, and to account for the dividends accrued and paid in connection with the deceased’s shareholding interest in Standard Chartered Bank (K) Ltd, British American Tobacco Co. Kenya Commercial Bank Ltd, Unilever Tea Kenya Ltd and Kenya Breweries Ltd.

7. She accused the respondents for colluding and fraudulently subdividing and selling Kericho/Sorget/Kalyet Block 7 (Yetu) 10 without consent of all the beneficiaries and without accounting for the proceeds of the sales.

8. She contended that her efforts and those of Joyce Njeri Mwai & Nancy Wamaitha Kirubi to find an amicable solution by seeking help from the area chief have been rebuffed by the Respondents and that the administrators have grossly wasted and mismanaged the estate using divisive tactics whereby those challenging the irregular activities are sidelined while those who side with them are rewarded with tokens incentives.

9. It was her deposition that unless this Honourable Court immediately restrains the respondents and revokes the Grant, the wastage and mismanagement described hereinabove will continue to the detriment of many beneficiaries.

10. Evans Kipngeno Ronoh, a grandson of the deceased herein swore a supplementary affidavit on his own behalf and on behalf of his siblings in support of this Application. He deponed that his late mother, Phylis Wambui Langat, was a daughter of the deceased herein and that at the time of his mother’s death, she had not received her share as a beneficiary of the deceased and thus her estate is entitled to share in the deceased’s estate.

11. He asserted that the administrators of the deceased’s estate have completely sidelined him and his siblings and that they have also mishandled the estate, disposed of its assets without involving other beneficiaries and generally wasting the estate.

12. In opposition to the Application, the 2nd Respondent, Samwel Kimani Karuga, swore a replying affidavit on his behalf and on behalf of his co-respondents on 26th February, 2024.

13. He averred that they had drawn the petition for Letters of Administration Intestate and other supporting documents for filing in the High Court but on presentation in the registry, the court staff changed them to read the Chief Magistrates Court and the petition was filed there.

14. He contended that the Applicants were included as beneficiaries and they have already received their share of the estate.

15. He deposed that the Applicants have not attached any evidence of the value of the estate of the deceased and that the values of the immediate properties comprising of the estate were not left out deliberately.

16. It was his averment that L.R 583/153 Londiani is Kenya Railways Corporation’s Land and not part of the estate of the deceased; the Applicants were each given seven(7) acres in Yetu Farm and Kericho/Sarget/Kalyet Block 7/(Yetu) (10) is not in the name of the deceased; that Jambo farm was given to the 1st Administrator/ respondent during deceased’s lifetime but it had not been transferred at his demise and as such it must be included in the list of assets and they will do so; that money in the bank accounts was approximately 2. 2 million , a portion of it was used to process some title deeds and the balance shared amongst the 10 beneficiaries and the applicants received Ksh.200,000/= each; that they have been unable to access the money, if any, in National Bank of Kenya as an incorrect account number was typed in the certificate of confirmation; and that they have not received any dividends for the shares the deceased held in various companies.

17. He asserted that Nakuru Municipality Block 9/17 and Nakuru 10/85 are jointly owned by the deceased and Rosemary Wanjiku Ikenye in equal shares and the latter would like to sell her share.

18. He contended that it was not true that they have rebuffed efforts for an amicable resolution of the dispute herein but it was the Applicants who had been unco-operative.

19. The 1st Applicant swore a further affidavit in response to the Respondents’ Replying Affidavit. She asserted that the Respondents commenced the proceedings in the Chief Magistrates courts, knowingly; with ill motives and the explanations that the documents were intended to be filed in the High Court only confirms that the Respondents knew which court possessed the correct pecuniary jurisdiction.

20. She asserted that the Respondents have not expressly denied the approximate values she cited and that additionally it is a matter of public knowledge that the two (2) properties situated within the Nakuru City Central Business District with rental income must have a value exceeding the Chief Magistrate’s Jurisdiction of 20 million.

21. That it is clear from the Respondents’ response that indeed some properties comprising the estate of the deceased were left out and that no values were assigned to the immovable properties cited in the assets schedule.

22. She averred that there is no evidence that L.R 584/153, Londiani is the property of Kenya Railways and that she had realized that L.R 584/IV/20 Londiani Town which was left out of the Assets lists was owned by the deceased and the respondents have been collecting rent; that Yetu Farm were given to all the deceased’s children intervivos and the land in issue is 50 acre parcel being Kericho/Sarget/Kalyet Block 7(Yetu)/10 left by the Deceased unallocated; that it is without doubt that Jambo Farm forms part of the Deceased’s estate and is, like other properties subject to distribution; that the respondents ought to give full details supported by documents to justify the alleged disbursements/expenditures of all the deceased’s monies left in the various banks and handled by them as administrators; & that the assertion that a typographical error has prevented the Respondents from accessing money held in National Bank of Kenya lacks credibility as they have not taken steps to move the court for rectification.

23. She contended that it is evident that the Respondents are not disclosing to the court that in agreement with the co-owner, they are actively engaged with prospective buyers for the sale of the Nakuru City Properties without consent or involvement of all beneficiaries.

24. Evans Kipngeno Ronoh also swore a further affidavit in response to the aforestated replying affidavit. He asserted that his late mother confirmed to him that she had received 2. 5 acre parcel of land from the deceased during his lifetime. However, he is aware that the deceased left part of his estate undistributed, the subject of the succession proceedings herein.

25. The Application was canvassed through written submissions.

Applicants’ Submissions 26. On whether the proceedings leading to the issuance of grant of letters of administration and the ensuing certificate of confirmation were a nullity and defective, the Applicants submitted that on the issue of jurisdiction alone the proceedings culminating in the issuance of the grant by the Chief Magistrate should be declared defective and a nullity.

27. Regarding whether the grant of letters of administration and the confirmation of grant were obtained fraudulently by concealment of material facts, the applicant submitted that it is evident the Respondents deliberately omitted from the list of Assets declared in Form P & A 5 a huge portion of the deceased property and that they had no intention of involving them as beneficiaries of the deceased’s estate as they later added grudgingly by hand their names upon agitation by those whose names were omitted.

28. The Applicants submitted that the children of the deceased’s daughter, Philis Wambui Langat were left out intentionally yet they were entitled to directly take the share of their deceased parent. In support of this position, reliance was placed on the cases of In re Estate of Florence Mukami Kinyua (Deceased) [2018] eKLR & In re Estate of Wahome Mwenje Ngonoro Deceased [2016] eKLR.

29. The Applicants also submitted that the respondents have wasted the deceased estate and handled the same in an opaque and dishonest manner and have failed to account to beneficiaries as required under Section 83(e) of the Law of Succession Act.

30. The Applicant prayed that the respondents should thus be ordered to give a full and detailed account of all their dealings with the deceased’s estate and any misappropriated estate’s money should be refunded and the court to halt further abuse and wastage of the deceased’s estate specifically by ordering the Respondents, their servants and/or agent to cease any dealings with the parcel of land known as Kericho/Sorget/Kalyet Bloc 7(YETU) 10, and Nakuru Mun. Block 9/17 and 10/85.

31. They also prayed for costs of the Application.

Respondents’ Submissions 32. The respondents submitted that under Sections 107 and 108 of the Evidence Act the Applicants had a burden to prove that the value of the estate of the deceased exceeded the Jurisdiction of the Magistrate’s court but they failed to discharge that burden as no valuation report has been filed. However, they urged this court to transfer the Nakuru CM Succession Cause No. 425 of 2018 to this court for further proceedings and disposal in the event it finds in favour of the Applicants.

33. The Respondents admitted there was omission of some properties and stated that they should be included in the list of assets. They posited that an omission to include some properties or beneficiaries/survivors does not lead to an automatic revocation or annulment of the grant since the court can exercise its discretion under Section 76 of the Law of Succession Act and order that the omitted assets or beneficiaries be added through an amendment without necessarily revoking the grant. For this proposition, they relied on the book by William Musyoka titled Law of Succession Law Africa 2006 at page 196 where the learned author inter alia opined that Section 76 of the Law of Succession Act is discretionary; it gives the court discretion to revoke or annul a grant. The court is not bound to revoke the grant even where a case is made out under Section 76.

34. In light of the above, the Respondents urged this court to preserve the grant and order that the missing properties be added through an amendment or rectification.

35. Regarding whether they should file full inventory of assets and accounts, they submitted that they have done so under paragraph 8 of the Replying affidavit and that the applicant at paragraph 8 of their supporting affidavit have admitted that each beneficiary received Ksh.200, 000 out of Ksh.2, 287,514 in bank accounts which according to them was an equitable distribution bearing in mind that the estate has 10 beneficiaries.

Analysis & Determination 36. The issues that stand out for determination are:-1. Whether the Grant of letters of Administration dated 10th December, 2018 and the Certificate of Confirmation of grant dated 9th July, 2019 issued in Nakuru CM’S Succession Cause Number 425 of 2018 should be revoked and/or annulled for want of jurisdiction.2. Whether the Respondents should be compelled to render an account of the estate of the deceased.

37. Depending on the finding in regard to the first issue, I may not need to delve into the second one.

38. A grant of representation whether confirmed or not may be revoked and or annulled at any time if one or more of the factors stated in Section 76 of the Law of Succession Act is established. The section provides:“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.”

39. The gist of this application is that the lower court did not possess the requisite pecuniary jurisdiction in light of the value of the estate. It is also contended that the grant was obtained fraudulently by making false statements and/or concealment of material facts in relation to omissions of some of the deceased’s substantial assets and values of the immovable property from the Lists of Assets. Lastly, it was contended that some beneficiaries were omitted and their names inserted as an afterthought.

40. I will begin by addressing the question of jurisdiction. Although not specifically provided in the Act, it goes without saying that a grant issued by a court without jurisdiction is a nullity and ought to be revoked ex debito justitiae.

41. It is trite law that jurisdiction is everything and without it a court must down its tools and make no further step. Its actions are a nullity. (See the Owners of the Motor Vessels “LillianS” vs Caltex Oil Limited [1989] KLR1).

42. The Supreme Court of Kenya held that jurisdiction is a product of the Constitution or written law. (See Samuel Kamau Macharia and Another vs Kenya Commercial Bank and 2 others (2012) eKLR. Thus, jurisdiction cannot be inferred, where none exists.

43. Previously, the jurisdiction of the subordinate courts in succession matters was set out under section 48 of the Law of Succession Act. It provides as follows;“Jurisdiction of magistrates48(1)Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49 of this Act, a Resident Magistrate shall have jurisdiction to entertain any application other than an application under section 76 of this Act and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed one hundred thousand shillings:Provided that for the purpose of this section in any place where both the High Court and a Resident Magistrate’s Court are available, the High Court shall have exclusive jurisdiction to make all grants of representation and determine all disputes under this Act.”

44. Section 48(1) of the said Act was amended by the enactment of section 23 of the Magistrate’s Court Act, 2015 which provides that;“Amendment of section 48 of Cap. 16023. The Law of Succession Act (Cap. 160) is amended, by repealing section 48(1) and substituting therefor the following new subsection—(1)Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7(1) of the Magistrates' Courts Act, 2015. 24. Amendment of section 49 of Cap. 160Section 49 of the Law of Succession Act is amended —(a)by deleting the words "Resident Magistrate" and substituting therefor the words "Magistrate's Court"; and(b)by deleting the words "one hundred thousand shillings" and substituting therefor the words "the pecuniary limits set out in section 7(1) of the Magistrates' Courts Act, 2015”.

45. In my view, the effect of the said amendment was to amend the entire section 48(1) together with the proviso thereto. Thus, the exclusive jurisdiction provided by the proviso to the High Court, where there is also a magistrate’s court, was abolished. It is also my view that the said amendment was aimed at vesting enhanced jurisdiction in the magistrate’s court. Therefore, the filing of the cause in the magistrates’ court, if the value of the estate was not in excess of it’s jurisdiction, would have been considered proper.

46. The next question is whether the magistrate’s court, with the powers vested by the said amendment, had pecuniary jurisdiction to handle the matter.

47. The jurisdiction of the magistrate’s court is currently as stipulated in Section 7 of the Magistrates Court Act.“Civil jurisdiction of a magistrate's court(1)A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed —(a)twenty million shillings, where the court is presided over by a chief magistrate;(b)fifteen million shillings, where the court is presided over by a senior principal magistrate;(c)ten million shillings, where the court is presided over by a principal magistrate;(d)seven million shillings, where the court is presided over by a senior resident magistrate; or(e)five million shillings, where the court is presided over by a resident magistrate.(2)The Chief Justice may from time to time, by notice in the Gazette, revise the pecuniary limits of jurisdiction set out in subsection (1), taking into account inflation and change in prevailing economic conditions.”

48. I have considered the affidavits by the parties and their submissions. I have also perused proceedings in Nakuru CM’s Succession Cause No. 425 of 2018. The Respondents listed the following as the deceased’s properties:-Land/Plotsa.Plot Blk Nku 9/17- Nakuru Municipality Partnership- Rosemary Ikenye ½ shareb.Plot Blk Nku 10/85- Nakuru Municipality Partnership- Rosemary Ikenye ½ shareBank Accountsa.KCB Londiani – A/C No. 110XXX03327- Ksh.1,881,957b.KCB Londiani – A/C No. 110XXX4718 J/Ac.STD Chart Nakuru – A/C No. 015XXXX69450d.Barclays Nakuru East – A/C No. 027XXXX904 J/A Ksh. 405,557. 55e.Post Bank Londiani 596/9f.Savings + Loan K. Ltd Nairobi 015-XXXX75638g.National Bank Head Office- A/C No. 01243-XXXX64-00h.KCB Londiani – A/C No. 13XXXX970Sharesa.Standard Chartered Bank K. Ltdb.British America Tobaccoc.Kenya Commercial Bankd.National Industrial Credite.Barclays Bank Kenya LTDf.Kenya Airwaysg.Unilever Tea Kenya LTDh.Kenya Breweries LTD

49. In the affidavit in support of the petition for the letters of administration, the value of the estate’s properties was putat Ksh. 20,000,000/=.

50. The impugned grant in the magistrate’s court was issued by one Hon. W.K. Kitur on 10th December 2018. His rank is not stated but a quick check on the Judiciary records shows that as at that date, the said magistrate was at the rank of a Resident Magistrate. Thus, the said magistrate’s jurisdiction, even in succession matters, was limited to estates whose value did not exceed Ksh. five million (5,000,000/).

51. As I stated, from the respondent’s own affidavit attached to the petition, the estimated value of the estate was placed at Ksh. twenty million (Ksh.20,000,000/-). Clearly, the said magistrate did not possess the requisite pecuniary jurisdiction to handle the matter in the first place. As such the grant issued on 10th December 2018 is null and void, for want of jurisdiction.

52. The Respondents aver that they intended to file this petition before this court but the court staff changed their documents to read the Chief Magistrate. Indeed, looking at the lodged documents, they were initially drawn to read “High Court”, but somehow this was changed, by hand, to read “CM’s Court” and were filed there. The respondents then went ahead to pay for the filing and the subsequent gazette notice of the cause in the Magistrate’s court. In as much as they are trying to shift the blame elsewhere, they must be held responsible for this as they had the option of informing the registry staff to have the file registered in the appropriate court. The two registries are in distinct sections so there is a possibility that the respondents knew what they were doing by filing the petition in the Magistrate’s court.

53. It is common knowledge that there is rampant practice of filing petitions in the magistrate’s court, even where the estate’s value exceeds the court’s jurisdiction. This practice is preferred by many parties, may be partly due to the proximity of the magistrate’s court and the perceived higher rate at which such causes are heard and determined there. However, such practice should not be encouraged where it is obvious that value of the estate exceeds or is likely to exceed, the jurisdiction of the magistrate’s court. It is the duty of each judicial officer handling any succession matter to take a keen look at the documents filed to satisfy himself/herself that he/she has the requisite jurisdiction before taking any further step therein. In case of any doubt, the parties ought to be directed to the right court.

54. Even if I was to find that the respondent’s explanation may hold some truth in it, that of itself cannot confer jurisdiction to a court that had none in the first place. Therefore, all the actions that took place in the cause were a nullity.

55. The Respondents urged this court to transfer Nakuru CMs Succession Cause No. 425/2018 to this court for further proceedings and disposal in the event it will agree with the Applicants on the issue of jurisdiction.

56. In the case of Abraham Mwangi Wamigwi vs Simon Mbiriri Wanjiku & Another [2012] eKLR, the Court held as follows;-“The law relating to transfer of suits from subordinate Courts to the High Court or any transfer for that matter is very clear. In Kagenyi vs. Musiramo (supra), Sir Udo Udoma, CJ made it clear that an order for the transfer of a suit from one court to another cannot be made unless the suit has been in the first instance brought to a court which has jurisdiction to try it. In Ali Abdi Sheikh vs. Edward Nderitu Wainaina & Others (supra), Koome, J (as she then was) found that since the plaintiff had filed a suit in respect of a claim to land whose value exceeded Kshs. 500,000. 00 in the subordinate court the suit could not be transferred since the general powers of the court to transfer suits under section 18 of the Civil Procedure Act cannot be exercised in a matter where the suit was filed in a court without jurisdiction. A similar view was taken by the same Judge in Rainbow Manufacturers Limited vs. National Bank of Kenya.

57. Further in Boniface Waweru Mbiyu vs. Mary Njeri & Another [2005] eKLR the court had held that:“Whenever a matter is filed before a Court lacking jurisdiction, the professional error there committed is a fundamental one, which cannot be excused as an ordinary mistake by counsel and which should not be held to prejudice the client. As between the advocate and his or her client, such a professional error could very well lead to claims in tort. As for the Court, the matter thus filed is so defective as to be a nullity. It is incompetent and void in law; and therefore it is not a motion or suit that can be transferred to any other Court. It is the duty of the Court or tribunal before which such matter is first brought to declare its status as a nullity; and it follows that such matter has no capacity to be transferred to any other Court”.

58. Lastly in Wamathu Gichoya vs Mary Wainoi Magu [2015] eKLR the Court held that:-“Furthermore, according to Kagenyi v Musiramo and Another, supra, the power to transfer a case to the High Court for hearing may only be exercised if the court before which it is filed is a court vested with competent jurisdiction to try and dispose of the matter. In other words, if the suit filed is incompetent, the High Court lacks jurisdiction to effect a transfer.”

59. The law is as set out by these authorities. It is therefore clear that since the cause in question was handled by a Court that had no jurisdiction, such a cause cannot be transferred pursuant to the provisions of Section 18 to this court. Even with unlimited jurisdiction, the High Court cannot confer jurisdiction to a court that does not possess it.

60. In the end, I find the Applicants have made out a case for revocation of the grant, on account of jurisdiction.

61. In view of my findings above, it follows that an analysis of the other arguments presented to the court would just amount to an academic exercise, so I will not delve into them. In addition, I think that addressing these issues at this stage would pre-empt their subsequent arguments, if they ever come up later, to the prejudice of either party.

62. Consequently, as a result of my findings, this court issues the following orders ;a.The grant issued on 10th December 2018 and confirmed on 9th July 2019 is hereby declared as null and void and is revoked forthwith.b.Any transaction based upon the said grant is declared to be null and void.c.The beneficiaries of the estate are at liberty to present a fresh petition for letters of administration to the appropriate court.d.Each party to bear their own costs.

63. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 3RD DAY OF JULY, 2024. H. M. NYAGA,JUDGE.In the presence of;Court Assistant JamleckMr. Mutonyi for RespondentsMr. Mburu for Applicants