[2023] KEHC 25390 (KLR)

In re Estate of Francis Karisho Nguti (Deceased) (Succession Cause 213 of 2012) [2023] KEHC 25390 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25390 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 213 of 2012

JRA Wananda, J

November 17, 2023

Between

Sarah Wanjiru Karisho

1st Petitioner

Miriam Muthoni Karisho

2nd Petitioner

and

Cecilia Nyakarura Gicheru

1st Objector

Abdi Karisho

2nd Objector

Ruling

1. The deceased, Francis Karisho Nguti, died on 18/04/2012 at the age of 50 years. 3 months later on 24/07/2012, the Petitioners, describing themselves as widow and daughter, respectively, filed a Petition seeking Letters of Administration intestate over the estate. However on 28/10/2016, the 1st Objector, claiming to be the rightful widow, filed a Cross-Petition and also an Answer opposing the Petitioner’s Application. To my knowledge and from my perusal of the record, no Grant has therefore been issued by the Court to date.

2. The matter has since then experienced a long and protracted litigation with a massive number of interlocutory Applications and counter-Applications filed for and against, particularly by the 1st Objector. As a result, no meaningful progress has been made in the matter ever since.

3. Now before the Court is the 1st objector’s application brought by way of the Notice of Motion dated 6/7/2022 seeking the following orders:i.That the Applicant herein, Cecilia Nyakarura, be appointed as the administrator of the estate of the deceased.ii.That costs of the application be provided for.

4. The Application is filed through Messrs Limo R.K & Co. Advocates and is premised on the grounds stated on the face thereof and supported by the Affidavit sworn by the 1st Objector.

5. In the Supporting Affidavit, the 1st Objector has deponed that she and the deceased were husband and wife having gotten married under Kikuyu Customary law in 1995, the marriage was blessed with 3 children, namely, Jane Mokami Karisho, Mary Wamere Nguti and Evans Nguti, prior to the marriage the deceased had one child - the 2nd Objector herein, Abdi Karisho, upon demise of the deceased the 1st Petitioner attempted to block his burial on alleged grounds that she was a beneficiary of the deceased, the Court vide the orders dated 3/5/2012 given in Eldoret CMCC No. 323/2012 ordered that the 1st Petitioner’s alleged children with the deceased do undergo DNA tests to establish their paternity, the 1st Petitioner has however blatantly refused to comply with the said orders and it is now more than 10 years since the orders were issued, the Petitioners are strangers to the estate of the deceased and lack the locus standi to petition for letters of administration, the attempts by the 1st Petitioner to intermeddle with the estate of the deceased’s father were “nipped in the bud” by the Court in Eldoret Succession Cause No. 36 of 2002 vide the orders dated 29/5/2014, the 1st Petitioner has been intermeddling with the estate with the ulterior motive of stealing a match against the legitimate beneficiaries of the deceased and that the 1st Objector has priority in applying for letters of administration.

Petitioners’ Response 6. The Application is opposed by the petitioners vide the replying affidavit sworn by the 1st Petitioner and filed on 26/10/2022 through Messrs Mathai Mwangi & Co. Advocates. In the Affidavit, the 1st Petitioner has deponed that she started courtship with the deceased in the year 1997, they started living together in the year 2000, in the year 2001 the deceased brought to her the children of the 1st Objector, Mary Wamere aged 3 years and Evans Nguti aged 8 months, the 1st Petitioner was even given custody of the said children by a Court order when the 1st Objector abandoned them, the 1st Petitioner stayed with the children until they finished Form Four when their mother (1st Objector) came and picked them at different stages, at the time that the 1st Petitioner got married to the deceased, she already had one child - the 2nd Petitioner - whom the deceased took as his child too, the 1st Petitioner gave birth to their first child with the deceased - Newton Nguti Karisho - on 27/10/2002 and their second child - Lizzieh Wamere Karisho - on 18/3/2010, the law allows up to 4 administrators hence she is entitled to be an administrator, the 1st Objector does not have superior rights over her in applying for letters of administration since she is her co-wife.

1st Objector’s Supplementary Affidavit 7. In opposition, the 1st Objector vide the Supplementary Affidavit filed on 14/11/2022, reiterated that the 1st Petitioner is an imposter and a stranger to the estate, the beneficiaries of the estate are herself, Jane Mokami Karisho, Mary Wamere Nguti, Evans Nguti and Abdi Karisho, she only came to learn of the 1st Petitioner’s allegations of dependency when the 1st Petitioner attempted to stop the burial of the deceased which culminated into institution of the said Eldoret CMCC No. 323 of 2012 wherein the 1st Petitioner’s alleged children with the deceased were ordered to undergo DNA tests, the Petitioners have however adamantly refused to comply with the orders to date, the 1st Petitioner’s Application seeking shares of monthly rent from the deceased’s father’s estate in Eldoret Succession Cause No. 36 of 2002 was declined vide the Ruling dated 22/01/2021 on grounds that her legitimacy was in issue and therefore she was a stranger to the estate, the 1st Objector challenged the 1st Petitioner to avail proof of her alleged marriage to the deceased, she single-handedly raised her children, the orders of 7/10/2014 issued in Eldoret Children Case No. 339 of 2013 were set aside vide the Ruling dated 7/9/2018 on grounds that they were obtained through misrepresentation and concealment of material facts, the 1st Petitioner continues to waste the estate of the deceased by leasing out part of the property known as LR No. 10018 to third parties who are currently in the process of planting sugarcane in violation of the orders dated 13/03/2014, the Petitioners are perennial intermeddlers who have no regard to the rule of law as demonstrated by the numerous applications for injunctions on record, the Petitioners do not qualify to be Administrators of the deceased since they are not beneficiaries of the deceased and they are unfit to administer the estate due to intermeddling.

Hearing of the Application 8. It was then directed, and agreed, that the Application be canvassed by way of written Submissions. Pursuant thereto, the 1st objector filed her Submissions on 14/11/2022 and the Petitioners filed on 24/11/2022.

9. I note from the record that the 2nd Objector, Abdi Karisho Nguti, is represented by a separate law firm - Kibet Lemeto & Co. Advocates - who however have not participated in the present Application.

10. Regarding the 2nd Petitioner, it is not clear whether she is being represented by the same Advocates representing the 1st Petitioner, Mathai Maina & Co. This is because there is no reference to her whatsoever in the pleadings filed by the law firm.

1st Objector’s Submissions 11. Counsel for the 1st Objector submitted that the Petitioners instituted these Succession Cause without the knowledge of the Objectors, the 1st Petitioner is claiming to be the 2nd widow of the deceased and the 2nd Petitioner alleges to be a dependent even though she is not a child of the deceased, the 1st Objector filed cross-Petition for letters of Administration in this matter on 26/10/2016 as the sole widow, prior to the institution of these proceedings the 1st Petitioner had attempted to stop the burial of the deceased on grounds that she had not been recognized, the same culminated in the institution of Eldoret CMCC No. 323 of 2012 wherein the Court ordered the 1st Petitioner’s alleged children with the deceased to undergo DNA tests, the 1st Petitioner and her alleged children however have been unwilling to comply with the orders and are yet to comply more than 10 years later, according to the Chief’s letter dated 6/06/2022 the beneficiaries of the deceased are as listed in the 1st Objector’s Application, the Petitioners are not beneficiaries of the estate, the 1st Petitioner’s allegations that she was a wife of the deceased is highly contested, unless and until a determination is made by the Court on the 1st Petitioners alleged marriage and legitimacy, her attempts to be appointed as a co-administrator is premature and untenable and that the 1st Objector is the only spouse of the deceased as demonstrated by the proof of payment of dowry made on 2/7/1995, the Objector therefore ranks higher pursuant to section 66 of the Law of Succession Act and Rule 7 of the Probate & Administration Rules than her children with the deceased including the 2nd Objector who is a son to the deceased.

12. Counsel submitted further that the allegations by the 1st Petitioner that she raised and paid school fees for the 1st Petitioner’s children is misleading, by the Ruling dated 7/09/2014 the ex parte orders given in Children Case No. 399 of 2013 were set aside on grounds that the same were obtained through concealment of material facts and misrepresentation, the Petitioner has concocted undated photographs alleging that the photographs belong to the Objector’s children with the motive of misleading the Court, in any event, the 1st Petitioner does not qualify to be an Administrator since she has been intermeddling and wasting the deceased’s estate in contravention of section 45 of the Law of Succession Act and has even been charged over the same in Eldoret Criminal Case No. 995 of 2017, she has even been restrained from intermeddling with the deceased’s share in Eldoret Succession Cause No. 36 of 2002 vide orders made on 4/06/2014 and that the estate shall be at great risk of anarchy should the 1st Petitioner be appointed an Administrator. Counsel cited the case of Re Estate of Jared Gitau Gichuhi (Deceased) [2021].

1st Petitioner’s Submissions 13. On whether the 1st Petitioner was a “spouse”, Counsel cited section 2 of the Marriage Act 2014 and submitted that the 1st Petitioner was a spouse to the deceased because she cohabited with the deceased as husband and wife from the year 2000 and that she bore two children with the deceased, Newton Nguti Karisho and Lizzie Wamere Karisho, the deceased also accepted the 2nd Petitioner as his child, the 1st Petitioner thus qualifies to be appointed as one of the administrators because she is a surviving spouse, the 1st Petitioner took part in the burial of the deceased after obtaining a Court order since the 1st Objector had wanted to stop her from participating in the burial, the 1st Petitioner was recognized as one of the wives, the birth certificates also confirm that the children of the 1st Petitioner took the surname of the deceased. Counsel cited the case of Joseph Gitau Githongo v Victoria Mwihaki [2014] eKLR, Phylis Njoki Karanja & 2others v Rosemary Mueni Karanja &another, Nrb CA Civil Appeal No. 313 of 2001 [2009] eKLR and Hortensiah Wanjiku Yawe v Public Trustee CA Civil Appeal No. 13 of 1976 (UR).

14. On whether the 1st Objector should be appointed as the sole administrator of the estate, Counsel submitted that the law is clear on who can be appointed as administrators, he cited section 56(1)(a) and (b) of the Law of Succession Act and submitted that the number of Administrators is capped to a maximum of 4, the 1st Petitioner was a wife of the deceased and hence ought to be involved in the affairs of the estate, the 1st Objector is selfish and greedy and does not want her co-wife to be involved in the affairs of the estate. On the allegations of intermeddling, Counsel submitted that the 1st Objector has not tabled any evidence to support the allegations or that the 1st Petitioner was found guilty or convicted.

15. Regarding preference in appointment of Administrators, Counsel submitted that the 1st Petitioner ought to be given preference, she has equal status as the 1st Objector since she was married to the deceased. He cited section 66 of the Law of Succession Act.

Analysis and Determination 16. After careful analysis, I find that the issue that arises for determination to be the following:“Between the 1st Objector and the 1st Petitioner, who should be appointed as the Administrator of the estate of the deceased?”.

17. The matter of appointment of Administrators is one in which the final discretion lies with the Court. However, section 66 of the Law of Succession Act gives guidelines on the order of priority to be adopted. It provides as follows:“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference-(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by part v;(c)the public trustee; and(d)creditors”

18. From the evidence that has been tendered, the 1st Objector’s status as a widow and the status of her children are not contested by the 1st Petitioner. The 1st Objector’s claim that she has been married to the deceased since the year 1995 under Kikuyu customary law and that together they got 3 children has also not been disputed. She has exhibited a copy of a letter from the Chief listing her as the only wife and confirming her 4 children. By virtue of section 66 above, her entitlement as an administrator is therefore clear and well grounded.

19. On her part, the 1st Petitioner claims that she was a second wife to the deceased having begun cohabiting with the deceased from the year 2000. She states that she already had one child before she met the deceased and whom the deceased took in as his own. She further claims that she subsequently got two children with the deceased in the year 2002 and 2010, respectively. Although she has exhibited copies of Birth Certificates for the 3 children and which bear the name of the deceased as the father, all these contentions are denied by the Objectors. The result is therefore that the Petitioner’s claims are yet to be proved at this stage. The legitimacy of her alleged marriage to the deceased and the question whether her children have linkage to the deceased are matters that are still under contention awaiting proof.

20. The 1st Objector has also made the allegation that prior to the institution of this Cause, the 1st Petitioner had attempted to stop the burial of the deceased on grounds that she had not been recognized, that the 1st Petitioner then instituted Eldoret CMCC No. 323 of 2012, that in that suit the Court ordered that the 1st Petitioner’s children do undergo DNA tests to authenticate their alleged paternity by the deceased. According to the 1st Objector, the order, made 10 years ago, has not been complied with by the 1st Petitioner and her children. A copy of the Order was exhibited. It is not lost on me that the 1st Petitioner has maintained a loud and studious silence over this allegation and has not controverted it.

21. The fact that the Petitioners are yet to comply with the order issued in Eldoret CMCC No. 323 of 2013 on DNA tests and the fact that, at this stage, the Petitioners are also yet to prove their claims over the estate were also well captured in paragraphs 22 and 23 of the said Ruling delivered on 22/01/2021 by H. Omondi J (as she then was), in Eldoret High Court Succession Cause No. 36 of 2002. That Cause deals with the estate of the deceased’s father.

22. Be that as it may, the parties have to appreciate that, at this stage, the Court is only dealing with the sole issue of appointment of an Administrator to the estate. It is therefore premature for the Court to address or purport to determine issues on whether the 1st Petitioner was a “wife” to the deceased and whether her children are beneficiaries of the estate. These are issues that shall be canvassed and determined during the trial of this Cause.

23. I however have to mention that the Petitioners do not come out as candid litigants. I say so because I have perused the Petition for Letters of Administration filed by the Petitioners and observe that in the letter from the Chief, Pioneer location, Eldoret, dated 15/06/2012 that they presented, the Petitioners did not at all make any mention whatsoever of the 1st Objector as a wife or survivor of the deceased and also out of the 1st Objectors four children, the Petitioners only mentioned two and left out the other two. Since clearly the Petitioners were always aware of the existence of the 1st Objector as a wife to the deceased and also her children, and therefore as genuine survivors of the deceased, in the absence of any explanation, I find this conduct by the Petitioners to have been deliberate suppression of material facts and in extension, done in bad faith and calculated to mislead the Court.

24. Having analyzed the facts and since the estate cannot be left unadministered pending distribution, the question now is who between the 1st Objector and the 1st Petitioner should be appointed to be the Administrator.

25. In answering the said question, I have considered that both the 1st Petitioner and the 1st Objector are presently in occupation of respective portions of the estate properties. In the circumstances, one may be inclined to appoint the two as joint Administrators pending distribution. However, considering the level of “bad blood” and hostility that is apparent between the two, appointing them as joint Administrators is likely to only escalate the already heightened acrimony between them and as a result, paralyze operations of the estate.

26. In the circumstances, considering that the status of the 1st Objector as a widow is not contested and weighing it against the Petitioners’ conduct of appearing to avoid, defy or ignore the Court order given on 3/05/2012 in Eldoret Chief Magistrates Court Civil Suit No. 323 of 2012 on the taking of samples to conduct DNA tests on her children and also factoring the Petitioners’ inexplicable act of omitting to disclose the 1st Objector and her children as survivors of the deceased, I find that the balance of convenience clearly tilts towards appointing the 1st Objector as the sole Administrator for now.

27. I must also remind the parties that intermeddling of whatever kind is forbidden under section 45 of the Law of Succession Act. The parties and all other interested stakeholders are therefore not expected to misuse, waste, place out of reach or part with any portion of the estate in any manner whatsoever until such time that the Grant shall be confirmed by the Court and assets distributed accordingly. They should always be aware that they all are under a statutory obligation to ensure that the estate remains well preserved.

Final Orders 28. For the foregoing reasons, I allow the 1st objector’s notice of motion of motion dated 6/07/2022 in the following terms:i.The 1st objector - Cecilia Nyakarura Gicheru – is hereby appointed the sole Administrator of the estate of the late Francis Karisho Nguti.ii.A Grant shall now be issued to the 1st Objector, the said Cecilia Nyakarura Gicheru.iii.This matter shall then be fixed for hearing for purposes of the Petitioners proving their claims against, or their entitlements to the estate herein.iv.I note that the Court had previously, pending distribution of the estate, issued various orders, including orders restraining intermeddling with the estate and also relating to preservation, occupation, utilization and use of respective estate properties, and also including injunctions in some cases. For avoidance of doubt, such orders shall not be affected by the present orders now given hereinabove and shall continue being in force until further directions by the Court.v.Costs shall be in the Cause.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 17TH DAY OF NOVEMBER 2023. .......................................WANANDA J. R. ANUROJUDGE