[2022] KEHC 398 (KLR)

In re Estate of James Njoroge Githu (Deceased) (Succession Cause 946 of 2014) [2022] KEHC 398 (KLR) (Family) (15 March 2022) (Ruling)

Neutral citation: [2022] KEHC 398 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 946 of 2014

LA Achode, J

March 15, 2022

IN THE MATTER OF THE ESTATE OF JAMES NJOROGE GITHU (DECEASED)

Between

Nyonyo Githu

Applicant

and

Rahab Mwihaki Njoroge

1st Respondent

Dickson Gad Njoroge

2nd Respondent

Robert Eric Wambiru

3rd Respondent

Ruling

1. The deceased person subject to these proceedings died intestate on 20th, December 2013. He was survived by 2 wives and children as follows:1st Housei.Rahab Mwihaki Njoroge (wife)ii.Dickson Gad Njorogeiii.Eunice Wariara Njorogeiv.Loise Wambui Kambov.Rachael Wambui Njorogevi.Anne Waithera Langatvii.Hannah Wairimu (deceased)viii.Gathoni Kioi (deceased)2nd Housei.Alice Hottensiah Githu (wife) (deceased)ii.Josephine Gathoni Githu (deceased)iii.Ronald Githu Njorogeiv.Caroline Wariara Njoroge (Nyonyo)v.Stephen Ragoi Njorogevi.Robert Eric Wambiru

2. On 9th November 2015, grant of letters of administration intestate in the estate of James Njoroge Githu was made to Rahab Mwihaki Njoroge, Alice Hottensiah Githu, Dickson Gad Njoroge and Robert Eric Wambiru. Alice Hottensiah Githu however died on 28th December 2019.

3. The surviving Administrators filed summons for confirmation of grant in which they proposed the mode of distribution of the deceased’s estate as follows;Name Description Share of heirs

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith Wangui LR No. 10209/31 acre In equal shares

Robert Eric to hold in trust for himself and Caroline njoroge, steohen Ragui, Jorome Kamau, Janet Wambui, Kimberly Wahu, Giovanni Wambiru, jozelle Gathoni, Asli Bianco 2. 05 acres In equal shares

Robert Eric Wambiru Ngong/Ngong/42250 (0. 25 acres) Absolutely

Dickson Gad Njoroge Ngong/Ngong/59916 (0. 25 acres) Absolutely

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith WanguiRobert Eric to hold in trust for himself and Caroline njoroge, steohen Ragui, Jorome Kamau, Janet Wambui, Kimberly Wahu, Giovanni Wambiru, jozelle Gathoni, Asli Bianco Kajiado/Kitengela/3304 (8 acres) To be sold and proceeds shared equally

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith Wangui Nachu/Ndacha/354 (5 acres) All in equal shares

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith Wangui Karai/Lusingetti/T.350 All in equal shares

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith Wangui Plot No. 21 Lusigetti Market All in equal shares

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith WanguiRobert Eric to hold in trust for himself and Caroline njoroge, steohen Ragui, Jorome Kamau, Janet Wambui, Kimberly Wahu, Giovanni Wambiru, jozelle Gathoni, Asli Bianco Plot No. 23 Lusigetti To be sold and proceeds shared equally

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith Wangui Karai/Gikambura/T.112 All in equal shares

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith WanguiRobert Eric to hold in trust for himself and Caroline njoroge, steohen Ragui, Jorome Kamau, Janet Wambui, Kimberly Wahu, Giovanni Wambiru, jozelle Gathoni, Asli Bianco Longonot/Kijabe Block 4/591 (24 acres) To be sold and proceeds shared equally

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith WanguiRobert Eric to hold in trust for himself and Caroline njoroge, steohen Ragui, Jorome Kamau, Janet Wambui, Kimberly Wahu, Giovanni Wambiru, jozelle Gathoni, Asli Bianco Motor vehicle Reg No. KRA xxxB To be sold and proceed shared equally

Stephen Ragui Njoroge Motor vehicle Reg No. KBB xxxK (lorry with trailer ZE xxxx) Absolutely

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith WanguiRobert Eric to hold in trust for himself and Caroline njoroge, steohen Ragui, Jorome Kamau, Janet Wambui, Kimberly Wahu, Giovanni Wambiru, jozelle Gathoni, Asli Bianco A/C No. xxxxxxxxxxxx Paramount Bank, Westlands Branch Money to meet the cost of administration. Balance to be shared equally among all beneficiaries.

Dickson Gad to hold in trust for himself and Rahab Njoroge, Eunice Njoroge, Hannah Wairimu, Lose Wambui, Racheal Njoroge, Anne Langat, Mary Mwihaki, faith WanguiRobert Eric to hold in trust for himself and Caroline njoroge, steohen Ragui, Jorome Kamau, Janet Wambui, Kimberly Wahu, Giovanni Wambiru, jozelle Gathoni, Asli Bianco Rent from Safaricom Mast on LR. 10209/3 Money to meet the cost of administration. Balance be shared equally among all beneficiaries.

4. Nyonyo Githu, a beneficiary of the estate, filed this application by way of summons dated 23rd June 2021 seeking orders inter aliathat:a.The court do appoint Nyonyo Githu as a replacement administrator to substitute Alice Hotensiah Githu.b.The court do bar Dickson Gad Njoroge (3rd Administrator), Stephen Ragui Githu and Robert Eric Wambiru (4th administrator) from intermeddling in the estate of the deceased.c.The court do order Dickson Gad Njoroge (3rd Administrator), Stephen Ragui Githu and Robert Eric Wambiru (4th administrator) to account from the proceeds generated from use of the estate of the deceased.d.The court do order Dickson Gad Njoroge (3rd Administrator), Stephen Ragui Githu and Robert Eric Wambiru (4th administrator) to deposit all monies generated from use of the estate of the deceased especially monies collected from Karai/Gikambura T.112, Plot 21 in Lusigetti shopping center.e.The court do order the Administrators to file full and accurate accounts of the deceased’s estate within 10 days.

5. In support of the application, Nyonyo Githu swore an affidavit on the same date and attached consents by Wamburi Giovanni Cox, Kimberly Wahu Cox, Ashli Bianca Cox, Jozelle Gathoni Cox and Janet Wambui Githu. She deposed that she is the eldest and only living daughter of the 2nd house. That the 2 houses were involved in very contentious succession proceedings and that her only intention was to protect the interest of the deceased 2nd Administrator and her household.

6. It was her contention that Alice Hotensiah had prepared a witness statement, which was filed in court on 18th September 2019 but that she died before she could testify. She stated that she was the only one from the 2nd house, who could adequately pursue equal fair and just distribution of the deceased’s estate to all beneficiaries especially to the children of her deceased siblings.

7. Nyonyo Githu contended that since the death of Alice, the 2nd and 3rd Respondents have been making decisions on the administration of the estate without the consent of the other beneficiaries. That the two administrators have been using their privilege as males to pillage the estate violating the rights of the other beneficiaries. Further that the two Administrators have filed a proposed mode of distribution favoring themselves and without the consent of the other beneficiaries.

8. Nyonyo Githu stated that Dickson Gad Njoroge has taken ownership of Plot No 21 Lusigetti and erected buildings from which he collects rent. That the 2nd Respondent is also collecting rent from Karai/Gikambura/T.112. She also stated that Stephen Ragui Githu and Robert Eric Wambiru have forcibly taken ownership of a semi trailer KBV xxxK Mercedes Benz Actors xxxx, Motor vehicle Reg. No. ZE xxxx skeleton trailer, log book No. K xxxxxx and the Karen home. That these vehicles and home were in the late 2nd Administrator’s possession and use before her demise and formed part of the deceased’s estate.

9. Nyonyo Githu further averred that the 2nd Respondent had put some of the estate property up for sale being Ngong/Ngong/42250 and Ngong/Ngong/59916.

10. In response, the 2nd Respondent swore an affidavit on 26th July 2021 stating that the Applicant had been oversees for over 34 years and had not been in contact with her family for a long time. That in September 2019, the 1st and 2nd house agreed on the proposed mode of distribution of the estate but the Applicant refused to be involved in the negotiations or to sign the agreement.

11. The 2nd Respondent contended that all the beneficiaries including the dependants of the deceased beneficiaries have been catered for in the proposed mode of distribution. That therefore to include the Applicant as an Administrator in the estate would not be in the interest of justice for the beneficiaries as it would take the administration of the estate back to square one. Furthermore, that majority of the family members do not consent to the Applicant being an administrator. It was his case that the Applicant should have objected to the mode of distribution as opposed to seeking substitution of an Administrator.

12. The 2nd Respondent denied any form of intermeddling in the estate of the deceased. It was his contention that the trailer has been grounded since Alice’s demise and that it was agreed during out of court negotiations that motor vehicle KBA xxx be handed to the 1st house to be sold and proceeds shared equally but this has not been accomplished yet. He also denied collecting income from plot No. 21 Lusigetti Shopping Centre and stated that the plot was left to the 1st house by the deceased for their benefit.

13. Regarding Kara/Gikambura/T.112, the 2nd Respondent contended that it was agreed that since the second house enjoyed its use during Alice’s lifetime, it should be given to the 1st house. He asserted that it was agreed that the Karen matrimonial property be sold and proceeds shared between the two families. He denied the Applicants contention that the property was illegally occupied.

14. Eric Githu also swore an affidavit dated 16th July 2021 opposing the application. He averred that the Applicant has not demonstrated that she has the consent of some of the beneficiaries she supposedly represents. He contended that the proposed mode of distribution was agreed upon by all other beneficiaries except the Applicant and the beneficiaries she purports to represent.

15. Eric Githu further averred that the Applicant was not familiar with familial interest especially as it related to the deceased estate. He averred that one John Ngungi filed a witness statement stating that the parcel of land known as Ngong/Ngong/42250 was specifically purchased by the deceased for him hence the agreement by the family for the property to belong to him solely.

16. Eric Githu termed the Applicants application as full of falsehood and ignorance. He asserted that the proposed mode of distribution was not marred with male superiority as alleged but that it was made in congruence with other beneficiaries except those opposed. Eric Githu stated that the Karen property is currently unoccupied and stated that the only time he and his brother accessed it was to keep it safe from squatters.

17. The application was canvassed by way of written submissions. Nyonyo Githu filed submissions dated 4th November 2021 on her own behalf and on behalf of the other protestors. In it, she submitted that some properties owned solely by the 2nd house had been put up for sale by the 2nd Respondent after the death of Alice who was categorical about the properties in her witness statement. It was her contention that not all the beneficiaries of the 2nd house agreed to the proposed mode of distribution hence the need to appoint another administrator to protect their interest. That the beneficiaries from the 2nd house did not sign the consent for the proposed mode of distribution except Stephen Ragui and Robert Eric. She cited the case of Re estate of Tuaruchiu Marete (deceased)(1989) eKLR in support of her case.

18. Nyonyo Githu cited Rule 26 Probate and Administration Rules, and asserted that it is discriminatory for only the males in the family to distribute some properties to themselves absolutely and for the two male administrators to hold the property in trust for all the other beneficiaries even though they are all adults, without their consent. To support her assertion she relied on Nairobi Succession Cause 1064 of 1994, In the matter of the Estate of Isaac Kieru Njuguna (deceased).

19. Nyonyo Githu further cited Section 45 Law of Succession Act and stated that Dickson Gad Njoroge and Robert Eric Wambiru were intermeddling in the deceased’s estate by collecting monies and being in possession and occupation of some of the properties making part of the estate. She urged that her absence and residency outside the country for a prolonged period did not rescind her interest and rights in the properties of the deceased. In support of this, she relied on the case of theMatter of the Estate of Ravinder Singh Vohra (deceased), Succession Cause 1688 of 2006.

20. Counsel for the 3rd Respondent filed submissions dated 29th November 2021 in which he reiterated that Section 81 Law of Succession Act precludes the substitution of an administrator where an administrator dies and is survived by others. He also submitted that by virtue of Section 66 Law of Succession Act, this Court has discretion to appoint an administrator but that there are certain considerations the court should examine to ensure the estate is faithfully administered. He urged the court to put into consideration that there are no complaints against any conduct of the administrators by the other beneficiaries. He invited the court to consider the cases of Nairobi HC Succession cause No. 2256 of 2010, In the Estate of Margaret Muringo Muhoro (dececased) and Embu HC Succession Cause No. 449 of 2006, Elias Muriithi Njiru vs. Humphrey Mugambi Burini and Caroline Gatwiri Ntwigah.

21. Counsel for the 1st and 2nd Respondents filed their written submissions dated 22nd November 2021. Counsel submitted that power vests in the survivors of a deceased to ensure the administrator performs his duty. He further submitted that the court cannot purport to substitute a deceased administrator as it is not permitted in law. He cited the cases of Estate of Mwangi Mugwe (deceased) Nairobi HC Succession Cause No. 2018 of 2001, Julia Mutune M’mbokori vs. John Mugambi M’mbokori & 3 others (2016) eKLR and In re Estate of Tuaruchui Marete (dececased) (2019) eKLR. It is his contention that the rest of the beneficiaries object the Applicant’s application.

22. It was his case that the Applicant had not laid sufficient grounds for substitution of the deceased administrator and further that the application was only meant as a delay tactic in administration of the estate. Counsel cited the case of Nelson Muchangi Wachira vs. Dadson Githinji Wachira & another(2006) eKLR.

23. To Counter the allegations on intermeddling, Counsel relied on Section 45, 79 Law of Succession Act and the cases of Re Estatate of M’ngarithi M’miriti(2017) eKLR, Veronika Njoki Wakagoto (deceased) (2013) eKLR and Re estate of Kenneth Njagi Josiah (deceased)(2021) eKLR. He submitted that the applicant did not append any evidence of intermeddling in the deceased’s estate. He urged this court to dismiss the application.

24. Upon careful consideration of the pleadings on record and the rival submissions of the parties, three issues emerge for determination;i.whether this court can allow the Applicant to substitute the deceased administratorii.whether there is intermeddling in the deceased’s estateiii.whether the administrators are dutifully discharging their mandate.

25. On the first issue, it is not disputed that the Court in issuing grant of letters of administration intestate, took into consideration the existence of two households. That the court appointed two representatives from each house to ensure equitable administration of the estate. It is also not in dispute that the surviving Administrators continued with the process of administration and there was no replacement of the deceased administrator.

26. The law relating to the death of an administrator of a deceased estate is covered under Section 81 Law of Succession Act which states as follows:-Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of the trust until the court has made a further grant to one or more persons jointly with him.

27. The above provision is however silent on the issue of substitution of an administrator. This issue has however been extensively dealt with by both the Court of Appeal and the High court. The Court of Appeal in the case of Florence Okutu Nandwa and Another vs. John Atemba Kojwa, Civil Appeal No. 306 of 1998 cited in the case of John Karumwa Maina vs. Susan Wanjiru Mwangi(2015) eKLR, held as follows:-“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another.The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules). I agree with the respondent that there cannot be a substitution of the dead administrator by his wife in the manner proposed by the applicant.”

28. The effect of the above provision and decision is that there can be no substitution of an Administrator by way of filing an application for substitution. For one to be appointed an administrator, he must follow the process under the Law of Succession Act and the Probate and Administration Rules. Short of that an administrator coming on record through an application for substitution will not be properly on record. (see Estate of Muroko Kimitu (deceased)(2019) eKLR). The Applicant ought to apply for revocation of grant and start the process of administration afresh.

29. Section 45(1) Law of Succession Act, precludes intermeddling in the deceased’s. It provides:-Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

30. It is the Applicant’s case that Dickson Gad, Stephen Ragui and Robert Eric Wambiru have been intermeddling in the estate of the deceased since the demise of the Co-Administrator Alice Hottensiah Githu. Specifically that they have been operating the red semi-truck reg No. KBV xxxK, Mercedes Benz Actors 3340 and motor vehicle reg No. ZE xxxx skeleton trailer and collecting income from there use without accounting for it. She further stated that Dickson Gad, Stephen Ragui and Robert Eric Wambiru have been collecting rent from some properties of the deceased’s estate without accounting for it, being; Karai/Gikambura T.112 and Plot No.21 in Lusigetti shopping centre. It was also her contention that Stephen Ragui Githu and Robert Eric Wambiru have forcibly taken possession of the Karen Home.

31. It is trite law that he who alleges must prove. The burden lies with whoever would want the court to find in their favour. This Court notes that the Applicant has not brought any evidence in support of her claim. Furthermore, these claims were wholly denied by the 2nd and 3rd Respondents. They submitted that all the property in the deceased’s estate is still intact and grounded awaiting the distribution according to the proposed mode of distribution. The Respondents intimated that they had only discussed the dealings in the properties to ensure that the wishes of the beneficiaries are honoured in the proposal for distribution, which is yet to be heard and determined. In the circumstance therefore, the threshold for proving intermeddling has thus not been achieved.

32. On the issue as to whether the surviving Administrators are properly discharging their duties, this court is guided by Section 83 Law of Succession Act. It provides as follows:-Personal representatives shall have the following duties -(a)to provide and pay, out of the estate of the deceased, the expenses of a reasonable funeral for him;(b)to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;(c)to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);(d)to ascertain and pay, out of the estate of the deceased, all his debts;(e)within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;(f)subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;(g)within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.(h)to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;(i)to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.

33. From the above provision, it is clear that an administrator has the duty to get in to the deceased’s estate and ascertain the properties that make part of the estate. The administrator would then apply for confirmation of grant and propose a mode of distribution to ensure the estate is rightfully placed to the rightful beneficiaries.

34. It is not disputed that the grant issued to the administrators has not been confirmed. In fact there is on record a summons for confirmation of grant of letters of administration intestate which has yet to be heard and determined. Accordingly, this court will examine whether the current surviving administrators have so far delivered on their mandate as the personal representatives of the deceased prior to confirmation. The Applicant specifically prays that the Administrators comply with section 83(e) and render full and accurate inventory of the assets and liabilities of the deceased’s estate and full and accurate accounts of all dealing.

35. The duties of an administrator are very clear and this court will not belabor. It is prudent that the Administrators of the estate render full inventory of the assets of the deceased’s estate in the interest of all the rightful beneficiaries.

36. The upshot of the foregoing analysis is that the Law of Succession makes no provision for substitution of an administrator. If an administrator dies, any interested party may apply for revocation of grant and petition for letters of grant to be made to them. The Applicant in this case has the right to apply for revocation of grant of letters of administration. In the alternative, the Applicant can file a protest against the proposed mode of distribution and further append her proposal on distribution of the property.

37. In the premise, I find that this application succeeds in part and order that:-a.The surviving Administrators do file full and accurate inventory of the assets and liabilities of the deceased’s estate within 60 days from the date hereof.

DATED SIGNED AND DELIVERED IN VIRTUAL COURT THIS 15TH DAY OF MARCH, 2022. L.A ACHODEHIGH COURT JUDGE