[2017] KEHC 7196 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

SUCCESSION CAUSE NO. 1090 OF 2010

IN MATTER OF THE ESTATE OF THE LATE GEORGE MACHARIA MAINA (DECEASED)

GRACE NYAWIRA MAINA.................................APPLICANT

VERSUS

STEPHEN WANJII MACHARIA....................RESPONDENT

RULING

1. The applicant filed summons for revocation of grant on the 21/05/2013 seeking to have the grant issued to the respondent revoked on the following grounds;

(i) that the grant was obtained fraudulently by concealment of something material to the cause in that the Petitioner failed to disclose that the deceased was registered as a proprietor of RUGURU/KIAMARIGA/187 in trust for himself and MAINA RIRI & NYAMU RIRI who are the deceased’s step brothers and the applicants father-in law;

(ii) That the Grant was obtained by means of untrue allegations of fact; that the petitioner failed to disclose to the court that the deceased person’s step brother’s wife survived him and was still alive; she therefore had equal priority to petition for the letters; her consent was also not sought.

2. The application was supported by the affidavit of the applicant sworn on the 21st May, 2013.

3. A brief overview of the facts are as follows; Stephen Wanjii Machariahereinafter referred to as “the Respondent” petitioned for Letters of Administration in respect of the estate of the late George Macharia Maina (deceased)who died intestate on the 27th January, 2007; the Grant was issued on the 3rd May, 2011 and was subsequently confirmed on the 28th September, 2012; the respondent proceeded to distribute the contentious parcel of land known as Ruguru/Kiamariga/187hereinafter referred to as “the suit property”to himself and to the family of Njarara Maina (deceased) who was his uncle and a brother to the deceased; but gave nothing to the applicants side of the family.

4. That the respondents’ grandfather Miana Ririi had two wives namely Wambui Maina and Warigia Maina; Wambui Maina was the mother of the George Macharia Maina (who was the father of the Respondent) and Njarara Maina (a brother of the deceased) ; the other wife namely Virginia had one son Riri Kuikui Maina who was the deceased’s step-brother; he sired two sons who were Maina Riri (deceased) and Nyamu Riri (deceased); the applicant herein is the widow of Maina Riri (deceased); and the other brother Nyamu Riri (deceased) is survived by his widow Rose Githaiga Nyamu; the applicant’s contention is that she is entitled to a portion of the suit property; and only got to know about the succession cause when the surveyor visited the suit property with the intention of subdividing it pursuant to the Certificate of Confirmation with nothing having been distributed to her and her sister in law; and that her consent and the other widows consent was not sought or obtained when the respondent petitioned for the Letters of Administration; that such failure made the Grant fatally defective;

5. Directions were given on the 1st February, 2016 that the hearing proceed by way of viva voce evidence and the parties were directed to file and exchange written submissions thereafter.

APPLICANTS’ EVIDENCE

6. The Applicant relied on her supporting affidavit and statement; and called two witnesses to support her case; she told the court that her late husbands’ family had two parcels of land that had been created as a result of consolidation and adjudication namely RUGURU/KIAMARIGA/187 AND MAGUTU/GAIKUYU/63;the suit property was registered in the name of the deceased to hold in trust; and the other parcel was registered in the name of the brother of the deceased namely Simon Nyamu Maina; that the two brothers held the parcels of land in trust for the entire family of Maina Riri;

7. That Miana Ririi had two wives namely Wambui Maina and Warigia Maina; Wambui Maina was the mother of the George Macharia Maina (who was the father of the Respondent) and who had four other children namely Njarara Maina, Nyamu Maina, Gituba Maina and Gathoni Maina;

8. The other wife of Maina Riri was named Warigia and she had only one son Riri Kuikui Maina who was the deceased’s step-brother; who then had three children who were Maina Riri (deceased), Wainuku Riri and Nyamu Riri; the applicant herein is the widow of Maina Riri (deceased); and the brother named Nyamu Riri (deceased) is survived by his widow Rose Githaiga Nyamu;

9. Due to the number of disproportionate of children in the two households the clan elders decided that the two parcels of land could not be divided equally between the two houses; and proposed the land be shared as set out hereunder;

RUGURU/KIAMARIGA/187

Wambui Maina’s house – 4. 0 acres

Warigia Maina’s house- 2. 0 acres

AND MAGUTU/GAIKUYU/63

Wambui Maina’s house – 2. 6 acres

Warigia Maina’s house- 1. 5 acres

10. Simon Maina Nyamu who held the Magutu parcel in trust discharged the trust and transferred the 1. 5 acres to the applicant and her sister in law; but the deceased at the time of his demise had not transferred the 2. 0 acres of the suit property to her; that together with her sister in law though not resident on the suit property had been cultivating on it from the time they got married;

11. The applicant’s evidence was that she only got to know about the succession cause when the surveyor visited the suit property with the intention of subdividing it pursuant to the Certificate of Confirmation; and that her consent and the other widows consent was not sought when the respondent petitioned for the Letters of Administration; that such failure made the Grant fatally defective;

12. The applicants prayer was that she be awarded the 2. 0 acres in the suit property;

13. Her two witnesses corroborated her evidence and they too stated that the suit property belonged to Maina Riri who died before consolidation and adjudication; and that upon demarcation the land was registered in the name of the deceased in trust for the two families; that none of the two families had constructed on it and that were utilizing their respective portions for cultivation; and that the applicant was entitled to the 2. 0 acres.

RESPONDENTS’ EVIDENCE

14. In response the respondent gave evidence and relied on his replying affidavit filed on the 28/06/2013; and also called one witness in support;

15. He did not dispute that his grandfather Maina Riri had two wives namely Wambui Maina and Warigia Maina; and that his grandmother Wambui was the mother of the deceased herein and Njarara Maina, Simon Nyamu, Gitubu Maina, Gathoni Maina and Wamuyu Maina; and that his step-grandmother Viginia had only one son Riri Kuikui Maina who was blessed with two sons named Maina Riri and Nyamu Riri; that both are deceased and that they were the husbands of the applicant and Rose Githaiga respectively;

16. The respondent did not dispute the fact that their grandfather had two parcels of clan land; one being the suit property and the other being Magutu/Gaikuyu/63; and that his father the deceased died intestate on the 27/01/2007;

17. He denied the existence of any trust on the suit property between his late father and the applicants father-in-law; and that if it ever existed it ought to have been purged before his father’s demise;

His contention was that the suit property was registered in the name of the deceased to hold on his own behalf and on behalf of his brother Njarara Maina; while the parcel Magutu/Gaikuyu /63 was registered in the name of Simon Nyamu Maina who did not hold it in trust as well; no trust was terminated and that he only sympathized and gave the applicant a portion of the land;

18. His contention was that the applicant had adduced no evidence that the deceased held the suit property in trust for her and her sister in law; that she also could not canvass the issue of a trust in a Probate Court; that she ought to have sued the administrator in a civil suit for a determination of a trust instead of applying for revocation of the grant;

19. That no Trust has been proved to have existed that can be termed as a material fact that the Respondent can be said to have concealed or failed to disclose when obtaining the grant; further the applicant had failed to demonstrate that she was a beneficiary as required by Section 38 and 39 of the Law of Succession; and her consent was therefore not required when h petitioned the court for the Letters of Administration.

20. His witness who is a brother to the deceased and an uncle to the respondent reiterated the evidence on the families family tree; he confirmed that there was demarcation and consolidation of the suit property; his evidence was in support of the respondent on the non-existence of a trust and also told the court that he was never told about the shares as claimed by the applicant in her case;

21. In conclusion the respondent prayed that the Grant given by the court should not be revoked; and that the applicant’s case be dismissed;

ISSUES FOR DETERMINATION

22. After reading the affidavits and taking into consideration the evidence of both parties this court has framed the following issues for determination;

(i) Whether the declaration of a trust is a pre-requisite to the application for revocation of a grant;

(ii) Whether the orders sought for revocation of the grant are premature;

(iii) Costs

ANALYSIS

Whether the declaration of a trust is a pre-requisite to the application for revocation of a grant;

23. In this instance the applicants case is that the grant was fraudulently obtained by the respondent by the making of a false statement and concealment from the court of facts that were material to the case; she stated in evidence that the respondent concealed to the court the existence of a trust between the deceased and her father in law over the suit property; to which she was a beneficiary; and further the respondent did not seek her consent when petitioning for the Letters of Administration;

24. The applicants contention is that the deceased George Macharia Maina held the suit property in trust for himself, his siblings and step-siblings; one of the step-siblings being her father in law; she therefore seeks a revocation of the grant or a resulting distribution of 2. 0 acres in favour of herself and her sister-in-law;

25. This court notes that the applicants claim is based on a customary trust and this court concurs with the submissions of Counsel for the respondent ; that she cannot canvass the issue of a trust in a Probate Court; that she ought to have sued the administrator in a suit for a determination of a trust instead of applying for revocation of the grant;

26. This court is of the view that she has put the cart before the horse; in that she ought to have first requested for a stay of these proceedings whilst she canvassed and obtained a determination on the existence of a Trust in a separate suit in the Environment and Land Court; and then thereafter pursued the revocation of the Grant herein.

Costs

27. The applicant should shoulder the costs for this application as a penalty for bringing a premature application;

FINDINGS AND DETERMINATION

28. For the forgoing reasons this court makes the following findings and determinations

(i) A declaration of a trust is a pre-requisite to this application for revocation of the grant;

(ii) The application for the revocation of the grant is found to be premature and is hereby struck out;

(iii) The applicant shall bear the costs of this application.

Orders Accordingly.

Dated, Signed and Delivered at Nyeri this 2nd day of February, 2017.

HON.A.MSHILA

JUDGE