[2018] KEHC 4010 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

SUCCESSION CASE NO. 58 OF 2016

IN THE MATTER OF THE ESTATE OF HANNAH WANJERI WAWERU

1. STEPHEN NGURE WAWERU

2. TERESIAH WANGARI WAWERU.............APPELLANTS

Versus

1. CHARLES GATUWA NGUGI

2. ZIPPORAH WAIRIMU KIBURO............RESPONDENTS

JUDGEMENT

1. The appellants “Stephen Ngure Waweru & Teresiah Wangari Waweru) and the respondents “Charles Gatauwa Ngugi and Zipporah Wairimu Kiburi” were all beneficiaries in Githunguri SPM’s Succession Cause No 131 of 2013.

2. The grant of letters of administration were issued to the two appellants, jointly on 5th March 2014. The grant was confirmed on 25th August 2014 in the presence of all the beneficiaries listed as follows:

(i) Stephen Ngure Waweru

(ii) Benard Ng’anga Waweru

(iii) Teresia Wangari Waweru

(iv) Wangari Maigua Waweru

(v) Lucy Wambui Ngugi

(vi) Jacinta Wanjiru Njoroge

(vii) Zipporah Wairimu kiburi

(viii) Charles Gatauwa Ngugi

(ix) John Kagiri Waweru

(x) Samuel Boro Waweru

Each of them signed the court record.

3. According to the confirmed grant the deceased’s property which was ONLY Land L.R. Githunguri/Ikinu/2958 was to be distributed in the following manner

A

Stephen Ngure Waweru 0. 363 HA. to be shared equally

Teresiah Wangari Waweru among them

Jacinta Wanjiru Njoroge

John Kagiri Waweru

Wangari Maigua

Bernard Ng’ang’a Waweru

Samuel Waweru Boru

B

Charles Gatauwa Ngugi 0. 008 HA to be shared equally

Zipporah Wairimu Kiburi

4. The record shows that Charles G. Ngugi and Zipporah Wairimu the respondents herein are interested parties while the rest of the beneficiaries are the deceased’s children. After the confirmation of the grant the parties appeared before the trial court severally raising various issues.

5. The court gave several mention dates with a view of giving an allowance for the parties to settle their issues in vain. An application dated 29th October 2014 was filed on 13th November 2014 by the respondents herein. The application sought an order appointing the Executive Officer to sign all relevant documents in place of the appellants to facilitate the subdivision of L.R. No. Githunguri/Ikinu/2958 to the beneficiaries.

6. On 8th December 2014 the matter was mentioned in the presence of the appellants and respondents. It is clear that the appellants were aware of the application but they filed no response to it. In fact this is what they told the court.

“We are being told to sign forms that have already been signed. We have no objection to sign all other forms we are requested to.”

The learned trial magistrate gave them time and fixed a mention date for 22nd January 2015 to confirm compliance.

7. Further mentions were given and on 23rd February 2015 the court being satisfied that the appellants were in compliance allowed the application dated 29/10/14. It stated thus:

“I note that the respondents despite being given time to resolve the issue out of court have not been able to resolve the issue. They have also to put in any response to the application. The application is thus allowed in terms of prayer 1 of the application. Each party to bear its own cost.”

8. It is the said order that triggered the application dated 2nd April 2015 which sought to set aside the order of 23rd February 2015. In the said application the appellants herein sought 2 main prayers namely;

(i) The order of 23rd February 2015 be set aside

(ii) The respondents be restrained from interfering and meddling in the estate of the deceased Hannah Wanjeri Waweru.

9. The application dated 2nd April 2015 was heard and a Ruling of the application was delivered on 3rd October 2016. Again as the record shows that the delay in delivering the Ruling was due to the many opportunities given to the parties to settle the matter out of court.

10. The appellants being aggrieved with the said Ruling filed this appeal raising the following grounds.

(i) The Learned magistrate erred both in law and facts when he upheld the respondents counsel’s argument that the appellant’s application dated 2nd April, 2016 and the orders sought had been overtaken by events.

(ii) The Learned Magistrate erred both in law and facts by upholding that the orders granted on 23rd February, 2015, which orders the Appellants were trying to set aside, were valid.

(iii) The honorable magistrate erred both in law and facts by not considering that the appellants as the administrators of the estate of the deceased had a duty to fairly and faithfully distribute the assets to all the beneficiaries including the respondents as purchasers.

(iv) The learned magistrate erred both in law and facts by failing to consider that the dispute between the appellants and the respondents could be amicably solved between themselves.

(v) The learned magistrate erred both in law and facts when he failed to direct his mind to the legal and factual issues before him, namely whether indeed the appellants had refused to execute the transfer documents.

(vi) Further the learned magistrate erred both in law and facts by failing to consider that the dispute between the appellants and the respondent involved around an access road and that the respondents wanted a wider road without contributing their portion of the plot.

11. Counsel for both parties agreed to dispose of the appeal by way of written submissions. M/s Kanyi, Koge & Co advocates appearing for the appellants urged that the trial magistrate erred by finding that the application of 2nd April 2015 had been overtaken by events. It’s their contention that the appellants being administrators should be left to complete their assignment.

12. Mr Kairu Kimani for the respondents in his submissions contends that there was no fraud or misrepresentation on the part of the respondents. That the appellants are not challenging the distribution or the shares they got. He refers to the new titles for the respondents namely Githuguri/Ikinu/3920 of 0. 008 HA. He referred the court to the case of Gitway Investment Ltd v Tajmal Ltd & 3 Others [2006] eKLR

DETERMINATION

13. As a first appellate court I have the duty to re-consider and re- evaluate the entire evidence afresh and arrive at my own independent conclusion. I have to also bear in mind that I did not have the advantage of seeing or hearing the witnesses. This I must give an allowance for. See Peters v Sunday post Ltd [1958] E.A. 424; Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] E.A. 123; Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Anor Civil Appeal No 345 of 2000 Okubasu, Githinji &Waki JJA.

14. I have considered the evidence on record, the documents, grounds of appeal and the written submissions. I hereby collapse the grounds into one broad ground namely:

“Whether the application dated 2nd April 2015 had been overtaken by events or not.”

15. The record shows that the petition for succession was filed on 18th November 2013. It was gazetted vide Gazette notice No 362 of 17th January 2014. The Grant was issued to the appellants on 5th March 2014. On 1st August 2014 the appellants filed an application dated 1st August 2014 seeking to have the grant confirmed before the expiry of the six(6) months since the issuance of the grant.

16. In the affidavit in support of the application both appellants stated this at para 4:

“THAT the mandatory six (6) months period has not lapsed since the grant of Letters of Administration was issued but we are applying under section 71(3) of cap 160 laws of Kenya to have grant confirmed urgently as there is no dispute amongst the beneficiaries who have consented to the mode of distribution (emphasis added) (Emphasis is mine).

The grant was then confirmed on 25th August 2014.

17. Two months down the line the appellants who wanted the Grant urgently confirmed did not move as fast as was expected. An application dated 29th October 2014 was filed and served. In the supporting affidavit of Charles Gatauwa Ngingi at para 5-7 states;

5. THAT we have made efforts to reach out to the administrators to have them sign R.L 19 and R.L7 forms for purposes of sub dividing and eventually transferring the said parcel to the respective beneficiaries to no avail. Attached herewith is a copy of demand letter sent to them marked “CGN2”.

6. THAT the said administrators have not offered any reason behind their failure to sign the said forms.

7. THAT we have had desire to own a title deed of our own so that we can economically further develop the said plot.

18. Despite being served with the said application and the appellants did not bother to respond to it and rebut the averments in para 5-7. The court gave them time to settle the issue and/or respond to the application. They did none of the two, and the application was allowed.

19. In their application dated 2nd April 2015 the appellants wanted the order of 23rd February 2015 set aside for the reason that the appellants did not disclose to the court the full information as to what was happening on the ground. They annexed copies of various certificates of official search (“SNW & TWW 2 & 3”) Forms R.L 7 and 9 (“SNW & TWW1’) and the restriction on the land (“SNW & TWW4”)

20. I have perused these documents against the averments. The records at the Lands registry show that on 3rd October 2014 before the application of 29th October 2014 was filed, the Lands Registry had effected the distribution of the various interests in the deceased’s land, in accordance with the confirmed grant.

21. It is unfortunate that the forms signed at the Lands registry by the Executive officer were never filed before the court, to confirm that it was him/her who signed them. Be it as it may the complaint by the appellants is that they were denied an opportunity to carry out their roles as administrators to completion.

22. As has been submitted, the appellants are not challenging the distribution of the estate and/or the shares in the new titles. The titles issued are in full conformity with the distribution as per the confirmed grant.

23. The question that follows is what would the appellants do that is different from what is on record at the Lands Registry’s records? The result would still be the same and there would be no point of making the parties go through the same process again only to come up with the same results.

24. Secondly whatever the appellants came up with in the dismissed application of 2nd February 2014 should have been their response to the application dated 29th October 2014. They had however elected not to file any response irrespective of the time extensions.

25. I am satisfied that by the time the appellants filed their application dated 2nd April 2015, the records at the Lands Office already reflected changes entered on 3rd October 2014. Furthermore by the time a Ruling was delivered on 3rd October 2016 title deeds namely Githunguri/Ikinu/3920 & Githunguri/Ikinu/3921 had already been issued. In addition the titles were in conformity with the confirmed grant of 25th August 2014. The trial Magistrate correctly directed his mind in declaring the application overtaken by events.

26. In conclusion I find the appeal to lack merit and is dismissed with costs.

Dated, signed and delivered this 3rd day of August 2018 in open court at Kiambu.

…………………………..

HEDWIG I. ONG’UDI

JUDGE