[2022] KEHC 10340 (KLR)

In re Estate of Jedida Wambui Njoroge (Deceased) (Succession Cause 541 of 2014) [2022] KEHC 10340 (KLR) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10340 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 541 of 2014

TM Matheka, J

May 9, 2022

IN THE MATTER OF THE ESATE OF JEDIDA WAMBUI NJOROGE(DECEASED)

Between

Ann Naipanoi Tekutwa

1st Petitioner

Edna Wairimu Njuguna

2nd Petitioner

and

Joseph Kamau Njoroge

Protestor

Ruling

1. Jedida Wambui Njoroge (deceased) died on 2nd of May 2013 aged 67 years. She had no child of her own and there is a dispute as to whether she was married. Upon her death she was buried at Nakuru North Cemetery.

2. Grant of letters of administration intestate were issued to her sister Ednah Wairimu Njuguna and sister in laws Ann Naipanoi Tekutwa and Ednah Wairimu Njuguna (petitioners) the 1st on December 2014. The administrators/petitioners filed Confirmation of the Grant vide the Summons for Confirmation of Grant dated 12th February 2019. However, before hearing of the said Summons, the protestor John Kamau Njoroge filed an Affidavit of Protest dated 22nd March, 2019. Therein he claimed that the deceased was his step mother having been married to his late father James Njoroge Mutegi and that the applicants herein were not her dependants.

3. He claimed that he was a dependant, and an heir of the estate because the deceased’s only property Bahati/Engorusha Block 4/134 (Matete) was purchased by his father and registered in the name of the deceased. That he had lived with her as a child before she moved to the said property. That he was now in possession and has actually been taking care of the same through routine maintenance and settlement of recurrent bills.

4. That he learnt that the petitioners had obtained Letters of Administration was he was served with a notice to vacate the property through the respondents’ Advocates R. M. Machage & Co. Advocates That the respondents failed to disclose to this Honourable Court that as sister in law and sister respectively to the deceased were not dependants and or beneficiaries of the deceased’s estate, obtained the grant contrary to the law.

5. In a further affidavit sworn on 11th October, 2019 he deponed that his late father married the deceased under Kikuyu Customary Marriage and that the ceremony was witnessed by several elders and kinsmen of his late father such as Samuel Macharia Kinyoro, Joseph Kimani Chege & Kihara Njoroge.

6. That upon solemnization of the marriage the deceased moved to his late father’s home in Solai Mutukanio where she shared the same matrimonial house with his mother Mary Wanjiku Njoroge and that the deceased later on and in line with the Kikuyu traditions adopted his late father’s name “Njoroge” as her surname to reflect her marital status as the wife of his late father. That his late father later on bought a parcel of land in the same neighbourhood at Solai-Kirima area and erected a house for the deceased. That he moved in with her and since then the deceased took care of his upbringing as a mother from his elementary education until completion of his O-levels.

7. That the deceased did not have any biological child but took pride in taking part in the upbringing of his father’s children who were named as her beneficiaries in the chief’s letter dated 5/2/2015.

8. He averred that his late father and the deceased later on moved to a place called Mwisho wa Lami in Bahati where they jointly operated a business and that the Catholic Church which their late father’s family belonged to commenced a project christened the Makao Project to assist its members in acquisition of plots at Teachers Estate within Nakuru and his late father subscribed to the same, acquired the suit plot but opted to register it in the deceased’s name since the Solai land was already registered in the name of the first wife. That he erected a residential house with his late father on the said plot and the deceased together with his late father resided thereon until their demise

9. That when the deceased was critically ill the applicants accessed her house and illegally took her personal documents and title deed to the suit land with the sole intention of disinheriting the true beneficiaries.

10. That the area chief at Solai area personally knew the deceased and his father as evidenced by his letter dated 22nd July, 2019, that he is not a stranger to the respondents as alleged and he urged this court in the interest of justice to allow the protest as prayed and to dismiss the Summons for Confirmation of Grant.

11. In response to the protest the applicants filed their respective statements on 23rd May 2019. The matter proceeded by way of viva voce evidence.

Petitioners’/respondents’ case 12. PW1, Ednah Wairimu Njuguna during examination in chief adopted her statement dated 15th May, 2019. She stated that the deceased was her elder sister who when their parents passed on took care of her education needs from high school until college. She testified that the deceased during her youthful age got a biological child out of wedlock one Muturi who died aged six (6) years old and thereafter she neither got any other child nor married until her demise.

13. It was her testimony that the deceased was suffering from asthma and owing to this health status and the fact that she took care of them she decided together with her late brother John Jadwel Waweru, his wife Ann Naipanoi Tekutwa and sister Christine Muthoni Muiru to buy her a plot at a place with favorable weather conditions and they settled for Bahati/Engorusha Block 4/134 (Matete) that had been introduced to them by the 1st Respondent who knew about it as it was sold by her Catholic Church.

14. She said together with John Jadwel Waweru, his wife Ann Naipanoi Tekutwa and Sister Christine Muthoni Muiru they contributed towards the acquisition of the above plot and upon full payment of the purchase price the title deed was processed in the name of the deceased and issued to them by the Catholic Church. Thereafter they apprised the deceased of the same whereby she commenced occupation , built a house and lived there until her demise

15. She stated that the deceased prior to her death gave John Jadwel Waweru the Original title Deed of the subject plot, her Identification Card and PIN certificate for safe custody. That taking into consideration the deceased’s poor health they advised her to get a house help to look after her. She complied by bringing in an elderly lady who stayed with her as a tenant and helper until her demise.

16. She further stated that after the demise of the deceased her said helper continued living on the suit plot until June 2014 when the protestor forcefully evicted her claiming ownership. She testified that the protestor is a stranger to the family and has no rights whatsoever to the subject property.

17. On cross examination, she stated that the name Njoroge was her father’s name and that her father died in 1985 while her mother died in 1982. Her parents lived in Kiamunyi. She did not see the deceased eulogy and did not know of her alleged husband James Njoroge Mutegi.

18. She couldn’t remember when; the suit plot was purchased; the deceased occupied the same; she sent her contribution towards acquisition of the plot; her deceased brother, her sister & the 1st respondent sent their contribution; and the rental houses on the suit plot were constructed.

19. She said the suit land was purchased at Kshs.65, 000/=. Together with her sister they each contributed twenty thousand shillings and their late brother topped up the rest.

20. She wants to inherit the deceased property because she was her sister and contributed towards the acquisition of the suit property.

21. PW2, Anna Naipanio Tekutwa, testified that she was the sister in law to the deceased having been married to her deceased brother one John Jadwel Waweru. In addition she stated that she pays rates for the suit plot and that her deceased husband, her sister in law and the 2nd respondent contributed Kshs.69,000/= towards the acquisition of the land. She said the deceased was a chicken farmer and that the building on the suit plot was constructed by her late husband and her sisters in law. She could not remember when the same was constructed. She confirmed she had seen the protestor before at deceased’s place.

22. PW3, Rakeli Wairimu Njuguna in her testimony adopted her statement dated 15th May 2019 In addition she testified that in the year 1961 she was married to the late uncle of the deceased and that she was the deceased’s family spokeswoman. That the deceased never introduced any suitors to her during her lifetime and that the protestor was a stranger to her.

Protestor’s case 23. DWI, Joseph Kamau Njoroge in his testimony reiterated the averments contained in his Affidavit of Protest sworn on 22nd March 2019 and his Further Affidavit sworn on 11th October 2019.

24. He reiterated that the suit plot was purchased by his late father and registered under the deceased’s name and that his late father constructed a home for the deceased thereon where she lived for over twelve (12) years. He disputed that he evicted the deceased’s house help from the suit property and forcefully occupied the same after the demise of the deceased.

25. He denied that he came to the subject plot after the demise of the deceased and that the correct position is that he has been living on the subject plot since 1993.

26. That he would take the deceased to Provincial General Hospital for treatment and would meet with the first respondent who is a health worker there. He confirmed the petitioners herein also took care of the deceased when she was sick.

27. On cross examination he stated when his father died he gave the deceased one acre piece of land at Solai which has no title and it is still there and that they are yet to distribute his father’s estate. He said that after the demise of the deceased he developed the chicken coop on the suit plot into rental houses and has been receiving rent from the same to date. No rent has ever been deposited in court. He confirmed he does not pay rates for the suit plot.

28. DW2, Joseph Kamau Chege, an uncle to the protestor supported his testimony and in addition testified that he attended the deceased dowry payment at Kiamunyi.

29. PW3, Mary Wanjiku Njoroge was the mother to the protestor. Similarly, she supported the testimony of the protestor and stated that she attended the deceased’s dowry payment. She claimed that deceased was her co wife and when the subject property was identified, she sold her goats to contribute to the purchase. She said for that reasons she too had a claim.

Protestor’s submissions 30. The objector filed his submissions on 21st July, 2021.

31. He submitted on the following issues Whether the letters of grant issued on the 1st of December 2014 was obtained fraudulently on account of concealment of material facts;

Whether the letters of grant should be revoked;&

Whether the objector is a dependent of the deceased for purposes of succession.

32. With regard to the first issue, the protestor reiterated that the deceased was married to his late father under Kikuyu Customary Law and that the deceased together with his late father resided on the suit property until her demise.

33. He contended that the petitioners were guilty of concealing this material information as they filed Succession Cause without his knowledge, failed to disclose to court that deceased was married and of his existence, and excluding him as one of the dependants from the list of beneficiaries in their summons for confirmation of grant.

34. He thus that the petitioners’ failed to comply with the provisions of section 51(2) (g) of the Law of Succession Act.

35. To bolster this position the protestor relied on the caseIn Re Estate of Stephen Mwangi (Deceased) (2018)eKLR where the court held that failing to disclose deceased’s survivors, respondents obtained grant fraudulently by making false statement of fact and concealing from court something material to the case.

36. On the second issue, the Protestor contended that he has met the threshold for revocation of grant having established that the petitioners concealed material & crucial information whilst applying for grant specifically that the deceased was married and had a step son thereby excluding his name from the list of beneficiaries.

37. He submitted that for dispensation of justice to occur in any judicial proceedings parties must make full disclosures to the court of all material facts to the case including succession cases. For this proposition the protestor relied on the case IntheMatterof theEstateofJulius Ndubi Javan (Deceased)(2018) eKLR.

38. He further submitted that petitioners did not comply with the provisions of section 26 of the Probate and Administration Rules as they did not serve him with a notice when they petitioned for Letters of Administration. He thus urged the court to revoke the grant issued to the petitioners.

39. On the last issue, the protestor submitted that it is not in dispute that he was a step son of the deceased. That he is the dependant of the deceased under Section 29 (b) of the Law of Succession Act.

40. He cited the provisions of section 66 under part V on who qualifies to apply for representation in intestacy and also Section 38 of the Law of Succession Act; relied on the case in Re Estate of Dorcas Wanjiku - Deceased (2014) eKLR where the court held that a step child to the deceased can inherit the deceased’s estate if proven that he or he was being maintained by the deceased prior to his or her death and argued that he has demonstrated that he was being maintained by the deceased at the time of her demise and furthermore owing to the fact that the suit property was bought by his late father he believes he has a right to inherit the deceased estate.

41. The Petitioners/Respondents filed their submissions on 12th March 2021.

42. They submitted on two issues namely; Whether the petitioners were entitled to petition for the letters of administration intestate;

Who is entitled to inherit the deceased estate?

43. On the first issue, it was the petitioner’s submissions that the deceased died intestate and with no surviving spouse or child. They argued that the persons entitled by law to petition for grant of letters of administration Intestate are listed under Section 66 of the Law of Succession Act. The petitioners/respondents also cited the provisions of Section 39 (1) of the same Act which provides for order of priority with which the property of the deceased who died intestate and with no spouse or child shall devolve upon his/her kindred.

44. On the definition of consanguinity they relied on the Black Law Dictionary 8th Edition which defined consanguinity as the relationship of persons of the same blood or origin and affinity as the relation that one spouse has to the blood relatives of the other spouse; relationship by marriage or any familial relation relating from marriage and thus submitted that the objector is a stranger to the deceased estate.

45. It was the petitioners submissions that a step son who does not prove that he was maintained by the deceased immediately prior to his/her demise is not entitled to benefit from his or her estate. For this proposition they placed reliance on the case in Re Estate ofDorcas Wanjiku Deceased [2014]eKLR.

46. The petitioners/respondents contended that the step child who fails to prove that he or she was maintained by the deceased immediately prior to his or her demise does not qualify to be an administrator of her estate within the meaning of section 66 of the Law of Succession Act. To support this position they relied on the case in Re Estate of Gamaliel Otieno Onyiego [Deceased] [2018] eKLR.

47. They submitted that the objector is not a beneficiary within the ambits of section 66 and section 39 (1) of the Law of Succession Act.

48. On the second issue, they reiterated that the protestor is not a dependant of the deceased’s estate as he failed to prove that the deceased maintained him immediately prior to her death as required under section 29(b) of the Law of Succession Act. To bolster this position the Petitioners relied on the case of Re: Estate of Sarah Wanjiku Nyaga (2017) eKLR where the court explained who is to inherit under Section 39(c) of the Law of Succession Act; that under Section 66 of the Act sets out the order of preference of persons entitled to obtain letters of administration. They submitted that step children do not share any blood relationship with the deceased and are not entitled to inherit.

49. They also relied on the case In The Estate of Margaret Nduta Maina (2018)eKLR where the court elucidated on the importance of considering the degree of consanguinity and affinity as provided for under section 29 of the Law of Succession Act while establishing the right party to inherit the deceased’s estate

50. They prayed that the property should devolve to them as per section 39 of the Law of Succession Act.

51. They further relied on the case inNaomi Watiri Githukuvs. Naphtali Kamau Githuku & Another [2006]eKLR where the court while quoting section 38 of the Law of Succession Act stated that there is no inclusion of step children as heirs of a deceased.

52. From the foregoing they urged this court to allow them to proceed with the administration of the deceased’s estate.

Analysis of the cases relied on by the objector/protestor Issues for determination 53. The issues for determination in this matter are; Whether the protestor was a step son of the deceased and a beneficiary to her estate;

Whether the petitioners have priority in law to be issued with the Grant of Letters of representation of the deceased’s estate;&

Whether the grant of letters of administration intestate issued to the petitioners 1st of December 2014 should be revoked.

Analysis & Determination Issue No.1- Whether the protestor was a step son of the deceased and a beneficiary to her estate 54. It is not in dispute that the deceased did not have biological children.

55. The protestor averred that deceased was married to his late father under Kikuyu Customary Marriage and thus he was her step son. The petitioners disputed this fact and claimed the protestor is a stranger to the deceased’s estate. In the submissions they state that from the evidence on record it is common ground that the protester is a step son. The next issue is whether the protestor was a dependant of the deceased’s estate. Section 29 of the Act defines a dependant as follows:“29 (a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and(c) Where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

56. Under the above provision, the protestor must prove that he was being maintained by the deceased immediately prior to her demise. It was the Respondent’s contention that the deceased raised him as his son and educated him during her lifetime. It was further his testimony that he lived in the suit property with the deceased since the year 1993.

57. The Law under Section 107, 108 & 109 of the Evidence Act imposes a burden of proof on the person who alleges. Simply stated, he who alleges must proof. The legal and evidential burden fell upon the protestor to proof that he was being maintained by the deceased immediately prior to her death. This burden was not discharged. The protestor did not tender any evidence to support his claim.

58. In a persuasive authority in Re Estate of Margaret Nduta Maina (Deceased) Supra the court took the view that an applicant qualifies to be deemed a dependent of the deceased estate under section 29 (b) if he proves he was being maintained by the deceased immediately prior to his death.

59. The contention that he should be considered as the beneficiary since the subject plot was bought by his late father was also not established. There was no documentary or any other proof to that effect. Neither was there any proof that his own mother contributed to the purchase of the property as alleged. What is evident is that the property belonged to the deceased as it was registered under her name.

Issue No.2 - Whether the petitioners have priority in law to be issued with the grant of letters of representation of the deceased’s estate 60. Section 66 Law of Succession Act provides;“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice, to that discretion, accept as a general guide the following order of preference –surviving spouse or spouses with or without association of other beneficiaries; other beneficiaries entitled in intestacy, with priority according to their respective beneficial interests as provided by Part V; the Public Trustee; and creditors.”

61. Section 39 of the Law of Succession Act which provides as follows:-“(1) where an intestate has left no surviving spouse or children, the net intestate estate shall devolve upon the kindred of the intestate in the following order of priority-a)Father; or if deadb)Mother; or if deadc)Brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if noned)Half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if nonee)The relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.(2) Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the state, and be paid into the Consolidated Fund.”

62. The order of preference set out in section 66 of the Law of Succession Act is discretionary. Section 66 refers to it as ‘a general guide.’ The court can appoint administrators without following the order of preference. Priority is given to surviving spouses, followed by the other beneficiaries entitled in intestacy as set out in Part V of the Act, then the Public Trustee and creditors. The persons entitled in intestacy according to Part V, in their order of preference, include children (and grandchildren where their own parents are dead), parents, siblings, half-siblings and other relatives who are in the nearest degree of consanguinity up to and including the sixth degree.

63. Other relatives as set out in section 39 of the Act should come in as the deceased was neither survived by any children nor spouse. Her parents are also deceased and therefore the next in line of appointment as administrators are the siblings of the deceased. The 2nd petitioner was sister to the deceased. The 1st petitioner was married to late first born brother of the deceased. The petitioners therefore rank in priority and are qualified to administer the deceased’s estate.

Issue No.3 - Whether the grant of letters of administration intestate issued to the petitioners 1st of December 2014 should be revoked 64. The circumstances under which a grant of representation may be revoked by this court are provided for under Section 76 (a)-(e) of the Act. The relevant grounds for purposes of this case are set out in Section 76(a), (b) and (c) of the Act, which states as follows-“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-(a)That the proceedings to obtain the grant were defective in substance;(b)That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)That the grant was obtained by means of an untrue allegation of a fact essential in point of law to just the grant notwithstanding that the allegation was made in ignorance or inadvertently …”

65. The above provision was construed in the case of Matheka and Another vs Matheka [2005] 2 KLR 455 where the Court of Appeal laid down the following guiding principles.“i. A grant may be revoked either by application by an interested party or by the court on its own motion.ii. Even when revocation is by the court upon its own motion, there must be evidence that the proceedings to obtain the grant were defective in substance, or that the grant was obtained fraudulently by the making of a false statement or by concealment of something material to the case or that the grant was obtained by means of untrue allegation of facts essential in point of law or that the person named in the grant has failed to apply for confirmation or to proceed diligently with the administration of the estate.”

66. The protester’s allegations that the Petitioners obtained the grant fraudulently and through concealment of material facts to the court; did not disclose that the deceased was married and had step children. The petitioners/respondents testified that they were unaware of the existence of any marriage between the deceased and the protestor’s late father and protestor as a step son, indeed there is no evidence on record to show that they were aware of this position. Be that as it may the protestor has not established he is a dependant of the deceased estate within the meaning of section 29 (b) as he failed to prove that he was being maintained by the deceased immediately prior to her demise hence the petitioners were not obligated to ‘disclose’ him as beneficiary. The Petitioners sister in law and sister of the deceased respectively yet in Form P & A 5 they described themselves as daughter and daughter in law of the deceased. They explained that this was not of their making and reiterated on oath that their relationship was sister and sister in law.

67. However, it should be noted that power to revoke a grant is discretionary. In the case of Albert Imbuga Kisigwa vs Recho Kavai Kisigwa, Succession Cause No.158 of 2000, Mwita J. in a decision rendered on 15th November, 2016, noted thus:“[13)]Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

68. It is evident that it those descriptions were erroneous as the rest of the supporting documents indicate what the Petitioners said on oath. Under section 74 of Law of Succession Act, Errors in names and descriptions, or in setting out the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the Court and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.

69. It is my view that that error in the description of the petitioners is rectifiable under Section 74 and rule 73 of the P&A rules which states:“nothing in these Rules shall limit or otherwise effect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court".

70. Having considered all the evidence before me it is evident that according to the Protester the deceased was allocated one acre of land by his father. That part of the deceased’s estate remains unavailed as the protester and his mother have not filed for succession of his father’s estate yet he is said to have pre deceased the deceased herein. There is no evidence that his father bought the deceased’s property or that she maintained him or any of his siblings.

71. These Final orders proceed from the foregoing;i.The Protest is without merit and is dismissed.ii.The Petitioners rank in priority as the beneficiaries of the deceased’s estate to obtain letters of administration for the estate of Jedidah Wambui Njoroge.iii.As a step son the protester does not fall in the category of consanguinity required by the Law of Succession Act to be described as a child of the deceased and to be entitled to be an heir of the deceased’s estate. He has not provided any evidence to support his alleged dependancy.iv.The petitioners are beneficially entitled to the estate of the deceased vide s. 39(1) of the Law of Succession Act.v.The Summons for confirmation of grant dated 12th February 2019 is allowed as prayed and a certificate of confirmation of grant to issue accordingly.

72. Each party should bear their own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH MAY 2022. MUMBUA T MATHEKAJUDGECA EdnaOumo & Co Advocates for the Petitioners/AdministratorsMunene Chege & Co Advocates for the Protester