[2019] KEHC 1813 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF JUDICATURE OF KENYA

AT MALINDI

SUCCESSION CAUSE NO. 35 OF 2010

IN THE MATTER OF THE ESTATE OF JAPHETH KITHUNGA

BAYA ALSO KNOWN AS JAPHETH KIBUNGA BAYA who died intestate on31. 7. 2017

BETWEEN

LOICE KITHUNGA BAYA

AND

JANE KASICHANA CHAI

CORAM: Hon. Justice R. Nyakundi

Omollo Onyango for the Appellant

Chepkwony for the Respondent

RULING

The applicant Jane Kasichana Chai filed Summons for revocation and or annulment of the grant to the Estate of the deceased Japheth Kithungaissued to one Loice Kithunga Bayaon 4. 11. 2010in terms of Section 67 (1) of the Law of Succession Act.

By way of the aforesaid summons as supported by an affidavit, the appellant applied for revocation based on the following grounds:

1) That the said grant was obtained fraudulently by omitting the names of the applicant as legitimate beneficiaries of the estate.

2) That the impugned grant was fraudulently applied for by manipulating material facts using a defective letter issued by the area Chief who gave false information concerning the beneficiaries to the estate.

3) That by the fraudulent acts of the respondent, the appellant has suffered prejudice and denial of her inheritance to the estate.

The respondent Loice Katungamana is opposed to the application on the basis that she is the legal wife of the deceased. That the grant of Letters of Administration was properly issued and notices issued to all the beneficiaries to the estate of the deceased.

Background

From the proceedings and annextures, it is undisputed that Japheth Kithunga Baya (the deceased) died on 31st July 2009. As at that time of his death, he was a teacher and a member with Kilifi Teachers Co-operative Savings and Credit Society Ltd. It is also noted that on 28th October 2010 Samwel Baya - Chief Gede Location wrote a letter identifying the following survivors/heirs to the estate of the deceased as:

1. Loice Kithunga Baya

2. Mary Dania Kithunga

3. Timothy Baya Kithunga

It is also not in dispute that the respondents obtained limited grant of Letters of Administration Ad – Collogenda Bona on 4th November 2010.

The deceased was also the registered owner of Title Deed number Marereni/Mswameni/763. As a result of the grant, Loice Kithunga was to benefit from a cheque for Kshs.290,799/= being an amount computed as pension on account of the deceased Japheth Kithunga Baya.That in the grant of Letters Ad colligenda Bona issued to Loice Kithunga is an error being contested by Jane Kasichana Chai alleging that she falsely misrepresented facts when she declared under oath as the only legal wife to the deceased.

That in obtaining the stated Letters of Grant of Administration for the estate, the respondent intentionally concealed material facts on the existence of other dependants, to wit Jared Kithunga and Timothy Baya.

Analysis

What appears from the particulars of the Summons for revocation are various Allegations which call for interpretation of Section 29 of the law of Succession act on the legal dependants of the deceased. That these issues cannot be addressed by way of Affidavit evidence but through viva voice evidence which can be recorded and challenged by way of cross-examination. It is on this context that on the issue of summons for revocation parties do address the issue by scheduling the matter for interpartes hearing.

However in the same record, I will deal briefly with the issue whether the interim payment of the pension amount of Kshs.290,799. 90/= of death gratuity due to the estate in favour of Loice Kithunga Baya contravened the Law of Succession Act on intestate probate.

The Law

I will start by consideration of the Law relating to pensions and benefits as governed under the Retirement Benefits Act Cap No 3 of 1997 of the Laws of Kenya. The law which came into force sometimes now under Section 36A provides that

“Upon the death of a member of a scheme, the benefit payable from the scheme shall not form part of the Estate of the member for purposes of administration and shall be paid out by the trustees in accordance with the scheme rules.”

The provisions in Section 36 A of the Act are subject to regulation 23 of the Retirement Benefits (Occupants Retirement Benefit Schemes Regulation which states:

“That the scheme rules shall provide that upon the death of a member, the benefits payable from the scheme shall be paid to the nominated beneficiary and if the deceased member had not named the beneficiary, then trustees shall exercise discretion in the distribution of the benefits to the dependants of the deceased member.”

There is now a myriad of case law on this concept of nomination by the beneficiary of her pension out of his free will to bequeath during his life time a portion of his or her asset to a person possibly identified in the nominee card or form. In the case of RE: Estate of Carolyne Achieng Wagali (Deceased) 2015 eKLR,the Court stated: -

“It is the Law that funds subject of a nomination do not form part of the nominator’s estate and therefore such funds cannot pass under the will of the deceased or vest in his personal representative, such funds are not subject to the succession process, and should be dealt with in accordance with the Law governing the nomination. Nominations are statutory, in the sense of them being specifically provided for by a particular statute.”

In addition to the above principle the court in Benson Mukema Muriungi –vs- C.E.O Kenya Police Sacco & another 2016 eKLR dealt with a situation similar to the facts prevailing between the applicant and respondent where the Court held as follows:

“Nomination under the Co-operative Societies Act are statutory. Section 39 (1) of the Co-operatives Societies Act provides that upon death of a member, a Co-operative Society may transfer the share or benefits of the deceased member to a person nominated in accordance with the Act or the rules made there under. The property which is subject of statutory nomination is not free property of a deceased member. It does not pass or vest in the personal representative of the deceased member or to the estate, it passes directly to the nominee.”

In the instant case from the facts that accrue, there is no dispute that the deceased prior to his death worked as a teacher. He was also a member and contributor to Kilifi Teachers Co-operative Savings and Credit Society Ltd. The deceased by way of appointing a nominee pursuant to the provisions to By Law No. 17 of Kilifi Teachers Savings and Credit Co-operative Ltd be made a valid and enforceable nomination dated 19th March 2008 to persons entitled to receive his benefits upon death to be Loice Kithunga Baya,Mary Dania and Timothy Baya.

He subsequently and simultaneously on the same date crystalized nomination and made his intention known that the benefits that may accrue upon death be transferred also to the aforesaid beneficiaries.

The Public Trustee as it appertains to its mandate was under duty to pay the death gratuity to Loice Kithunga as the surviving widow and children in compliance with nomination entry in the prescribed form by the deceased.

The thrust of any such payment made by Kilifi Teachers Co-operative Savings and Credit Company Ltd to Loice Kibunga and her children its pursuant to the provisions of Section 39(1) of the Co-operatives Societies Act 1997. This explains why on the other hand, any free property due for distribution to the beneficiaries was to be subjected to intestate probate of administration. The Court’s power for a grant of Letters of Administration Ad Colligenda Bona to Loice Kithunga Baya was specifically for the collection and preservation of the estate.

On the question as to whether the applicant was entitled to benefits due from the death gratuity as a dependant under Section 29 of the Law of Succession to the estate of the deceased is moot. The evidentiary material as deposed in the Affidavit ofLoice Kithunga Bayaformed the basis of the payment of the death gratuity as a bona fide nominee of the deceased.

For the above reasons, in view of the clear provisions of the Law on nominee and benefits payment of a deceased person I am unable to interfere with the decision by the public trustee.

I will therefore decline to revoke the special grant under Section 67 (1) of the Act on grounds of payment of Death gratuity or benefits to Loice Kithunga Baya and her children either from the Kilifi Teachers Cooperative Savings and Credit Company Ltd or employer in which the deceased was a member.

After making the foregoing findings, there is need for the beneficiaries under Section 29 of the Law of Succession Act to petition for proper administration and distribution of the estate. Whether the deceased is survived by more than one wife or children is a matter which requires to be heard and determined on the merits. I make no orders as to costs in any event.

DATED, DELIVERED AND SIGNED THIS 20TH DAY OF SEPTEMBER 2019.

R. NYAKUNDI

JUDGE

In the presence of

1. Mr. Kariuki for Odhiambo for the appellant

2. Ms. Ruttoh for Chepkwony for the respondent