[2025] KEHC 3815 (KLR)

In re Estate of Felix Mbiuki Gitari (Deceased) (Succession Cause E089 of 2024) [2025] KEHC 3815 (KLR) (Family) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3815 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E089 of 2024

HK Chemitei, J

March 27, 2025

IN THE MATTER OF THE ESTATE OF FELIX MBIUKI GITARI (DECEASED)

Between

Rita Mugure Nyaga

Petitioner

and

Betty Multipurpose Services Limited

Respondent

Ruling

1. This ruling relates to the notice of motion dated 31st January, 2024 filed by Rita Mugure Nyaga seeking for orders that:-1. Spent.2. Pending the hearing and determination of this application this honourable court be pleased to instantly order Betty Multipurpose Services Limited to pay school fees for the minor, provide for the upkeep and that of the petitioner.3. Pending hearing and determination of the petitioner’s application/petition for special limited grant dated 31st January, 2024 this honourable court do instantly order Betty Multipurpose services Limited to pay school fees for the minors, provide for the upkeep and that of the petitioner.4. Pending hearing and determination of the petitioner’s application/petition for special limited grant dated 31st January, 2024 this honourable court do instantly order Betty Multipurpose Services Limited to pay the minors school fees directly to their school bank accounts.5. The directors being sought in this application will not in any way prejudice the other beneficiaries of the deceased.6. It is in the interest of justice that this court issue the orders prayed.7. The honourable court be pleased to issue any further and such orders it may deem fit and just in the circumstances.8. The costs of this application be in the cause.

2. The application is supported by affidavit and further affidavit sworn by Rita Mugure Nyaga on 17th January, 2024 and 29th July, 2020, respectively. She avers inter alia that she is the widow of the deceased, who passed away on 19th July, 2023 as per death certificate No. 1729249

3. Their marriage was conducted under Meru customary law, and during their time together, they had two children namely Ryani Nyaga Gitari and Rani Kagendi Gitari. Ryani is currently a student at Kanga High School, while Rani is in third grade at St. Bakhita School.

4. That the deceased was responsible for covering their school fees through Betty Multipurpose Services Limited. Additionally, he paid for the insurance of the vehicles used to transport the children to school through the same company, with payments made to First Assurance Co. Ltd. She is a director at Betty Multipurpose Services Limited, a position she still holds.

5. She deponed that she has filed a petition for a special limited grant, seeking legal authority to access funds from the company to pay for the children's school fees, related expenses, transportation and general upkeep for both herself and the minors. She fears that, without immediate intervention, the children may be sent home from school due to unpaid fees and lack of necessary school supplies, making this application urgent. She is also struggling to meet their daily needs, further justifying the urgency of her petition, which was filed on 31st January, 2024.

6. She is requesting the court to direct Betty Multipurpose Services Limited to cover the children’s school fees and upkeep until the application and petition are fully heard and determined.

7. Before the deceased’s passing, company earnings were deposited into an MPESA Paybill account No. 836322. However, after his death, the other directors changed the Paybill account to No. 4103533 without her consent. She now seeks a court order to have the company's earnings redirected back to the original account until the matter is resolved.

8. That in Miscellaneous Application E063 of 2020 - Rita Mugure Nyaga vs. Felix Gitari Mbiuki & Another - she had sought to nullify a church wedding allegedly conducted between the deceased and Beatrice Ciamutegi Gitari. However, the court dismissed the application as time-barred under Sections 27 and 28 of the Marriage Act, 2014, since the alleged wedding took place in 2016, and she only became aware of it in 2020. Despite this alleged wedding, the deceased continued to cohabit with her in their Syokimau home and consistently recognized her as his wife under Meru customary law until his passing. The deceased also never denied being the father of the two children.

9. The application is opposed vide replying affidavit sworn by Beatrice Ciamutegi Gitari on 15th March, 2024. She avers inter alia that she is the deceased’s widow, having married him in 1983, and together they were blessed with three children namely Hellaine Karegi, Charles Mutembei and Dickson Mugambi. Their marriage was officially solemnized at P.C.E.A Chuka Town Church on 9th January, 2016, without any opposition. They voluntarily converted their customary marriage into a monogamous one of their own free will.

10. That the application in question is fundamentally flawed, legally unsustainable and should be dismissed outright, as the is not legally authorized to pursue succession on behalf of the deceased’s estate under Section 35 of the Law of Succession Act. She lacks the legal standing to file this suit, as she is neither the deceased’s wife nor a relative but rather a stranger to the family. Furthermore, the matter is res judicata having already been adjudicated, as the High Court previously ruled on a similar case filed by the - Miscellaneous Application E063 of 2020: Rita Mugure Nyaga vs. Felix Gitari Mbiuki & Another.

11. Additionally, Betty Multipurpose Services Limited is a corporate entity and cannot be sued in a succession case. This honorable court does not have the authority to compel a limited liability company to make payments based on an application by an individual claiming to be a director.

12. She has also failed to disclose material facts to wit she neglected to inform the court that she had previously filed another succession case in the Chief Magistrate’s Court, which was dismissed on 20th December, 2020, due to lack of pecuniary jurisdiction. The current application is merely intended to cause embarrassment and public ridicule to the widow and her family. It is misleading for her to claim to be the deceased’s wife while withholding crucial information, specifically that she had sued both the widow and the deceased in Miscellaneous Application E063 of 2020, seeking to nullify their marriage. That case was dismissed on 16th June, 2023, on the grounds of lack of jurisdiction.

13. Following the deceased’s passing, she attempted to join another legal proceeding aimed at halting his burial i.e. Chuka CMCC Miscellaneous Application No. E07 of 2020 – Dorothy Wanjiru Nguandaru vs. Beatrice Gitari. A court order for a DNA test was issued, and samples were taken from the deceased’s body, which remain at the mortuary.

14. She asserts that she does not know them and has never met her, further emphasizing that she was never married to the deceased. The deceased was killed by unknown individuals on the night of 18th July, 2023, and investigations are still ongoing. Following his death, they took possession of his Syokimau house, where all his important documents were stored, making it impossible for the family to access them.

15. She filed written submissions dated 12th June, 2024 placing reliance on the following among others:-a.In Re Estate of SMM (Deceased) 2021 eKLR where the court pronounced itself as follows:-“A special limited grant made to the, JMM, for the purpose of accessing deceased’s account at Equity Bank Account No. (Particulars Withheld) and to withdraw therefrom a total sum of Kshs. 52,400/= for the payment of school fees respectively for the payment of school fees for BK at (Particulars Withheld) High School at Kshs. 17,800/=; for payment of school fees for TK at (Particulars Withheld) Primary School at Kshs. 14,600/=; and for their upkeep and school related expenses at Kshs. 20,000/=.”b.Re Estate of CFB III (2015) eKLR where the court held that the deceased supported the minor in question before he died and the support included medical cover for the child. The court found that application was brought under urgency and specifically explained circumstances from the pleadings and annexures. The court was satisfied from the evidence presented that the case as presented merited grant of special limited grant for the purpose due to the urgent and special circumstances of the child of the deceased. The ’s mother and an aunt of the deceased had complied with the requirements of special limited grant as provided under Section 54 of the Law of Succession Act and 5th Schedule of the P & A Rules. The court thus granted the Application as prayed for payment of school fee and medical cover.

16. The beneficiaries of the deceased’s estate have filed written submissions dated 14th March, 2024 placing reliance of the following:-a.Phoenix of E. A. Assurance Company Limited v S. M. Thiga T/A Newspaper Service [2019] eKLR where the Court of Appeal relied on the leading case of Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Limited (1989) where it was observed as follows:“19. We are not persuaded that that proposition by the Respondent is correct in law. Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one is the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction. In another locus classicus in this subject, this Court pronounced: Owners of the Motor Vessel ‘Lillian S” v Caltex Oil (Kenya) Ltd (1989):‘Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.These words were echoed by this Court in Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel (2016) eKLR in the following words: -“In numerous decided cases, courts, including this Court have held that it would be illegal for the High Court in exercise of its powers under S. 18 of the Civil Procedure Act to transfer a suit filed in a court lacking jurisdiction to a court with jurisdiction and therefore sanctify an incompetent suit. This is because no competent suit exists that is capable of being transferred. Jurisdiction is a weighty fundamental matter and to allow a court to transfer an incompetent suit for want of jurisdiction to a competent court would be to muddle up the waters and allow confusion to reign. It is settled that parties cannot, even seek refuge under the 02 principle or the overriding objective under the Civil Procedure Act, the Appellate Jurisdiction Act or even Article 159 of the Constitution to remedy the same.… In the same way, a court of law should not through what can be termed as judicial craftsmanship sanctify an otherwise incompetent suit through transfer.Decided cases on this issue are legion and we cannot cite all of them. The case of Joseph Muthee Kamau & Another v. David Mwangi Gichure & Another (2013) eKLR is however on all fours and addresses the issue raised by Ms. Wambua as to whether the subordinate court could still hear the suit but only allow the maximum damages allowable within its pecuniary jurisdiction. The Court succinctly settled thus point in the flowing words: -“When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that: the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction. We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exists at the time of filing suit or latest at the commencement of hearing.

20. It is clear from the foregoing that the claim by the Respondent was filed before a court devoid of jurisdiction. The suit was nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. Civil Appeal No. 6 Of 2018 Phoenix East Africa Assurance Co. Ltd V S. M. Thiga T/a Newspaper Services is therefore a nullity as it was based on a nullity. We have said enough to demonstrate that this appeal has merit. We allow it with costs to the appellant.”

Analysis And Determination 17. The court has carefully perused the application together with the rival affidavits and the cited authorities. What is evident is that the issue of whether she was deceased’s wife is subject to serious contention. This is exemplified by earlier suits which were filed before and after his death.

18. At the same time the issue of whether the minors are deceased’s children is also one that will have to be subjected to scrutiny taking cue from the submissions and prima facie evidence so far presented. It is possible for instance that the deceased was their father and therefore educated and provided for other needs.

19. In relation however to the application for fees and other maintenance they have not presented to the court any evidence of the assets which it can be termed belonged to the deceased and therefore capable of meeting the minors needs. The Betty Multipurpose Services Company Limited for instance is a company which has its rules and regulation governed by the Company’s Act.

20. Being the case therefore the proper forum is to seek intervention through the said Act and not by way of Cap 160. It becomes difficult for the court to usurp jurisdiction which it does not have. That is a preserve of the Commercial Division in my view.

21. In any case once the estate is established and shared out the deceased shares in the above company becomes easily ascertainable and therefore fit for distribution in the manner the court will find. For now, it is too early in the day for this court to interfere or venture into it.

22. The same applies in equal measure to the Mpesa accounts which she asked the court to intervene and have it changed. If it is owned by the company, I respectfully think that this court does not have such jurisdiction to entertain.

23. All is not lost for it appears prima facie that she has 40 ordinary shares in the company going by the CR12 presented.

24. As regards the limited letters of administration I find the arguments by the Respondent weighty and at this juncture it becomes difficult to agree with the Applicant. There has been litigation commenced by the Applicant against the estate and the Respondent which on the face of it has been unsuccessful. To allow her to have the same may not be efficacious in the interim.

25. The best approach in the interest of justice and speedy resolution of this matter is to have her be an Objector and the Respondent a petitioner. They shall each agitate their rights fully.

26. In the premises I direct as hereunder:-(a)The application dated 31st January 2024 is hereby disallowed with no order as to costs.(b)The Respondent Beatrice Ciamutegi Gitari is hereby directed within 30 days from the date herein to file for letters of administration to the estate of the deceased herein and in default Rita Mugure Nyaga be at liberty to apply.(c)The Applicant in the filed cause (b) above the Applicant shall be the Objector and the Respondent the Petitioner.(d)The Applicant be at liberty to agitate her rights under the Company’s Act in Betty Multi Purposes Services Limited.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAIROBI THIS 27TH DAY OF MARCH 2025. H K CHEMITEIJUDGE