[2022] KEHC 10914 (KLR)

In re Estate of Hannah Wairimu Kinyanjui (Deceased) (Succession Cause 536 of 2017) [2022] KEHC 10914 (KLR) (Family) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10914 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 536 of 2017

AO Muchelule, J

May 9, 2022

Between

Salome Ringera & 19 others

Interested Party

and

David Waweru Kinyanjui

Respondent

Ruling

1. The deceased Wairimu Kinyanjui died on 15th August 2015. She left a written Will which she executed on 6th October 2011. She left a substantial estate. In the Will she appointed her brother David Waweru Kinyanjui (petitioner/respondent) as the executor. She left two children: Andrew Kinyanjui Wairimu and Ruth Wambui Wairimu.

2. On 5th May 2017 the respondent petitioned this court for the grant of probate with written Will. The grant was issued to him on 27th February 2018. He filed summons dated 28th January 2019 for the confirmation of the grant. The application is pending because of the present application dated 7th November 2019 by the interested parties.

3. The interested parties seek that LR No. 6845/124 (original number 6845/16/92) measuring 6. 941 hectares which property is registered in the name of the deceased and which is owned, occupied and developed by them be included in the deceased’s list of properties, and that the application for confirmation be amended to include the parcel and indicated to be distributed to the interested parties.

4. In the grounds and supporting affidavit sworn by Salome Kagwiria Gerald, it was deponed that the parcel originally belonged to Mathare Kwarahuka Witeithie Uteithio Investment Ltd in which the deceased was a director. The interested parties (and they are 20 in number) each bought a portion of the land from the company. Subsequently, the company’s other directors died. That left the deceased. The deceased transferred the entire parcel into her name. It does appear that the company had not transferred the respective portions to the interested parties. They complain that when the respondent petitioned this court for the grant he did not list this property as one of the properties of the deceased. They claim to be creditors of the estate of the deceased in respect of this parcel, and that is why they have applied to be included in the cause.

5. The respondent opposed the application. In his replying affidavit sworn on 26th April 2021 he stated that Salome Kagwiria Gerald did not have the authority of all the interested parties as some of them had not signed the authority to act or plead on their behalf. He swore that although the property was in the name of the deceased, she had left it out of the Will. Further, he admitted that the deceased had sold parcels of the property, but that the bona fide purchasers had not been established. He asked that the application for the confirmation of the grant should be left to proceed.

6. Mr. Muriuki for the interested parties and Mr. Kirimi for the respondent filed written submissions which I have considered.

7. The first issue for determination is whether the application is competent and/or regular. It was evident that Salome Kagwira Gerald swore that she was one of the interested parties and that she was swearing the supporting affidavit for herself and on behalf of the other 19 interested parties who had given her instructions to act on their behalf. She annexed the authority and/or instructions which showed that only 13 of the 19 interested parties had signed the same. 6 of the interested parties had not signed. The authority to act was indicated to have been made under Order 1 rule 13 of theCivil Procedure Rules.

8. Order 1 rule 13(1) and (2) of the Civil Procedure Rules provides as follows:-“(1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case.”It is clear that each of the 19 persons was required to authorize Salome Kagwiria Gerald in writing and sign the authority (Ndungu Mugoya & 473 Others v Stephen Mwangombe & 9 Others [2005] eKLR. That was not done in respect of all the 19 persons. It follows that Salome Kagwiria Gerald did not have the authority of the 6 persons to act for them and to bring the instant application, and therefore, to that extent, the application on their behalf is liable to be struck out.

9. The next question is whether this court can in these succession proceedings entertain the claim by the interested parties. I ask this because this succession court has the jurisdiction to determine the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally the distribution of the assets amongst the survivors and the persons beneficially interested, after providing for creditors and other liabilities of the estate (Re Estate of Alice Mumbua Mutua (Deceased) [2017]eKLR). The interested parties consider themselves to be creditors of the estate of the deceased, in the sense that they each bought a portion of the land in question. However, in paragraphs 4 and 5 of her supporting affidavit Salome Kagwiria Gerald stated as follows:-“4. That1 and 19 other interested parties herein are creditors to the estate of the deceased by virtue of being purchasers for Value of the portions of land number LR (6845/124) original number 6845/16/62) from the Mathare Kwarahuka Witethie Uteithio Investment Ltd, where the deceased was a director (annexed hereto and marked SR/2 is a bundle of share certificate in confirmation of ownership).

5. Thatthe deceased after the death of her co-directors of Mathare Kwarahuka Witeithie Uteithio Investment Ltd caused to be transferred the entire parcel of land LR (6845/124 (original number 6845/16/92) in her name (annexed hereto and marked SR/3 is a copy of the title).”It is evident that the interested parties bought the parcel of land not from the deceased but form the company. The transfer of the parcel of land from the company to the deceased has to be interrogated. Now that the estate of the deceased has an executor who has a grant, if the interested parties as purchasers seek orders of specific performance against the estate they should appropriately approach the Environment and Land Court created under Articles 162(2) and 165(5) of the Constitution and section 13 of the Environment and Land Court Act to deal with the dispute. This court would not have the jurisdiction to investigate the agreements, whether there were full payments and whether the interested parties should get their respective portions of land that they say they bought. This court would not deal with any questions of privity of contract that may arise.

10. If, ultimately, it is determined that the estate of the deceased is liable to the interested parties in respect of the said bought portions of land, any certificate of confirmation that will have been issued will be reviewed to include the disputed land, and the respective portions will be distributed to the interested parties. At this stage, this court has no jurisdiction to entertain the claim by the interested parties.

11. In conclusion, the application dated 7th November 2019 is dismissed with costs.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 9TH DAY OF MAY 2022. A.O. MUCHELULEJUDGE