[2024] KEHC 12340 (KLR)

In re Estate of John Kimani Njoroge (Deceased) (Succession Cause E017 of 2022) [2024] KEHC 12340 (KLR) (13 August 2024) (Judgment)

Neutral citation: [2024] KEHC 12340 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause E017 of 2022

G Mutai, J

August 13, 2024

IN THE MATTER OF THE ESTATE OF JOHN KIMANI NJOROGE (DECEASED)

Between

Anne Njoki Kimani

1st Petitioner

Francis Mbugua Kimani

2nd Petitioner

and

Margaret Mwihaki (suing as the mother and next friend of KK)

Objector

Judgment

1. The deceased died on 16th May 2014 at Port Reitz in Mombasa. According to the Assistant Chief of Port Reitz sublocation, he was survived by his two wives, Anastancia Wekesa Kimani and Jane Nyambua Kimani, and nine children: Musa Kimani, Anne Njoki Kimani, Joshua Nganga Kimani, Paul Kanyora (now deceased), Kimani Francis Mbugua, Teresia Njoki Kimani, Perida Kimani, Benson Mureithi Kimani, and Camilla Wambui Kimani.

2. The petitioners filed a petition for letters of administration intestate on 2nd March 2022, seeking to have the grant issued to them. Due to conflict between family members, the grant was not issued within the usual timelines, and it was only on 12th June 2023 that the grant of Letters of Administration Intestate was issued to Anne Njoki Kimani and Francis Mbugua Kimani.

3. The Petitioners filed the Summons for Confirmation of Grant dated 6th March 2024 on 10th March 2024. In the Joint Supporting Affidavit sworn by the Petitioners, it was noted that Paul Koigi Kanyora was deceased (paragraph 2(c)). In paragraph 7 of the said affidavit, the Petitioners deposed that:-“Paul Koigi Kanyora died on the 5th day of January 2024, his shares in the estate to vest in his son Kingshown Kimani through his guardian ad litem Camilla Wambui Kimani, but after taking into account all the medical and personal expenses/debts incurred by the said Paul Koigi Kanyora prior to his death.”

4. The Summons for Confirmation of Grant of Letters of Administration Intestate wasn’t heard. Vide a Notice of Motion dated 20th March 2024, the Objector sought three orders to wit, stay of confirmation of grant until her application is heard, her appointment as the guardian ad litem of her son, Kingshown Kimani, and for her to hold the son’s interest to in the estate and for provision for costs of the application. The basis upon which she filed the said application was that she is the mother of Kingshown Kimani, who is the beneficiary of his father, Paul Koigi Kanyora (deceased), who on his part was the beneficiary or the estate of the deceased herein. The Objector was unhappy with the proposal in paragraph 7 of the Supporting Affidavit to have the minor’s interest held by Camilla Wambui Kimani on the ground that she had not consented to it in her capacity as the minor’s biological mother and that no disclosure of the arrangement was made to her. She averred that she has actual legal, physical and sole custody of the minor and that no reason had been provided for her exclusion. She urged that it would be in the child's best interest that she, rather than Camilla Wambui Kimani, is appointed as the child's guardian ad litem. The applicant annexed to her application a birth certificate of “Kingshown Kimani”, which shows that his father is Paul Njoroge Kimani, while the mother is Margaret Mwihaki Ngige.

5. The Petitioners objected to the application. In response thereto, they filed a Notice of Preliminary Objection dated 3rd April 2024. The said objection cast doubt on the paternity of Kingshown Kimani. It urged that even if he was the son of Paul Njoroge Kimani alias Paul Koigi Kanyora, he could only inherit from his father, not the grandfather. It was urged that the grant be confirmed and that the shares of Paul Koigi Kanyora be set aside until the parentage of the minor was established and a guardian ad litem appointed. It was also averred that the Notice of Motion dated 20th March 2024 did not disclose material information.

6. The Petitioners also filed a Replying Affidavit sworn by Camila Wambui Kimani on 4th April 2024. Camilla stated in paragraph 2 of her affidavit that it was her brother who appointed her as the legal guardian of Kingshown Kimani “in a desperate bid to identify with fatherhood and to acknowledge Kingshown as his son, despite the drama surrounding his paternity originating from his biological mother. Margaret Mwihaki”. In paragraph 4, she deposed that “… our deceased brother gave me the said certificate … and asked me to keep it safe on his behalf. This was because he lived in fear that Margaret Mwihaki would one day change the certificate of birth and remove his name as his father…” Further, in paragraph 5, she stated that she was in the process of creating a trust for the benefit of the minor.

7. Camilla accused the Objector of mistreating her brother, forcing him into depression and alcoholism, and that he died from liver cirrhosis. She further deposed that the Objector herself cast doubt on the paternity of the child. In those circumstances, she urged that the child ought to be subjected to a DNA test so that his paternity could be established with finality.

8. Camilla urged the Court to confirm the grant to alleviate the family's hardships. She stated that Paul Koigi Kanyora’s hospital and funeral expenses were paid partly through loans from shylocks, whose repayment attracted the interest of Kes.200,000. 00 per month and ought, therefore, to be paid quickly so that the estate is not dissipated. The deponent stated that the Objector was actuated by ill will and averred that “when our brother passed away, she publicly stated that “nitakula hiyo pesa ya Paul, wapende wasipende.”

9. Vide Notice of Motion dated 10th May 2024, the 1st Applicant sought to have the grant confirmed so that the administrators could pursue payment from the National Land Commission. She prayed that the amount due to the estate of Paul Koigi Kanyora be sequestered and deposited in Court and that the child be subjected to a DNA test.

10. The grounds upon which the application is based is that the family had executed a deed of family agreement setting out now that the deceased's estate would be distributed. Further, the illness, hospitalization, and funeral of Paul Koigi Kanyora caused the family to incur expenses of Kes.4,041,135/-. To enable the family to bury him, money was borrowed at great cost. The monthly interest due on account of the said loans was Kes.215, 000. 00, which had accrued since January 2024. Due to default in repayment, there was a great risk of recovery action being taken against family members. It was urged that the National Land Commission was holding Kes.57,856,483. 00, which could not be paid until the grant was confirmed. Regarding what is due to Paul Kanyora the Petitioners urged that the same be deposited in Court “pending the hearing and determination of the various issues surrounding the said objection”. It was stated that Kingshown is not a dependant of the deceased, and thus, the objection was grossly unfair.

11. The Objector filed a Replying Affidavit sworn on 30th May 2024, in which she averred that the payment of medical bills could only be discussed after the objection application was determined. She stated that determining what share Kingshown is entitled to cannot be done without the correct guardian ad litem. Ms Mwihaki averred that Camilla Wambui Kimani had admitted paternity of the minor by Paul Kanyora in paragraphs 2, 3, 4 and 5 of her affidavit. She thus stated that a demand for DNA was baseless.

12. The petitioners filed a Supplementary Affidavit sworn by Anne Njoki Kimani, which averred that the Objector stated that Kingshown was not the child of Paul Kanyora. In the circumstances, she urged that it was necessary to establish his real paternity.

13. Harrison Mbugua Kimani, Francis Mbugua Kimani, Teresia Njoki Kimani, and Jane Nyambura Kimani filed Grounds of Opposition in opposition to the objector's Notice of Motion dated 20th March 2024. They stated that this Court lacks jurisdiction to hear the same. They urged that the application refers to a separate estate of Paul Koigi Kanyora and not that of the deceased herein. It was urged that the entitlement due to Paul Koigi Kanyora should be determined in separate succession proceedings. Therefore, it was urged that the application be dismissed as it was fatally defective. They stated that Paul Koigi Kanyora’s portion of the estate be deposited in Court to await proper administration of his estate.

14. Parties filed written submissions regarding both applications, which were highlighted on the 1st and 4th of July 2024.

15. Mr Tindika, learned counsel for the administrators, submitted in his written and oral submissions that the Notice or Motion dated 10th May 2024 be allowed. Counsel identified issues coming for determination as being:-1. Why the grant of letters of administration needs to be confirmed urgently;2. Whether the Court can rewrite the deed of family agreement;3. Whether Kingshown was a dependant of the deceased and the son of Paul Kanyora;4. Whether the net share of Paul Kanyora should be preserved pending the hearing and determination of the objection; and5. Whether a DNA test should be done on Kingshown.

16. With respect to the first issue, it was urged that due to the onerous financial obligation entered into by the family following the death of Paul Kanyora, the grant needed to be confirmed without delay. Regarding the second issue, it was submitted that the deed of family agreement was entered into freely by the family members and that it was binding. Relying on the case of Pius Kimaiyo Langat vs Cooperative Bank of Kenya Ltd [2017]eKLR, Mr Tindika submitted that the Court could not rewrite an agreement entered into by the parties.

17. It was urged that under section 29 of the Law of Succession Act Kingshown was not the dependent of the deceased as he had never met him nor was he maintained by him. It was urged, relying on the decision of the Court of Appeal in Pacific Frontier Seas Ltd vs Kyengo & Another (Civil Appeal No 32 of 2018) [2022]KECA 396 (KLR), that the Court could only interfere with the confirmation process only if it were alleged that Kingshown was alleged to be a beneficiary. Counsel submitted that this was inapplicable as it hadn’t been alleged that Kingshown was.

18. On the last issue, it was submitted that since it was necessary to determine Kingshown's paternity, the share of the estate due to Paul Kanyora could be set aside until the said determination was made. Reliance was placed on Rule 41 of the Probate & Administration Rules.

19. Mr Tindika submitted that the Objector had, during the lifetime of Paul Kanyora, denied that the latter was the father of Kingshown. That being so, it was necessary to have a DNA test so that the issue could be put to rest. Counsel stated that Paul Kanyora’s mother was ready to provide a sample. Reliance was placed on the decision of the Court of Wilfred Koinange Gathiomi vs Joyce Wambui Mutura & Another [2016]eKLR.

20. Counsel thus prayed that I allow the application.

21. Regarding the application dated 20th March 2024. Mr Tindika urged that the same should be dismissed. He submitted that the application was brought to frustrate the administration of the estate.

22. Counsel submitted that it was necessary to have a DNA test done on Kingshown to establish his paternity. He urged that the estate of Paul Kanyora cannot be administered under that of John Kimani Njoroge and that it should be subjected to separate proceedings pursuant to the applicable procedures. Lastly, it was submitted that the Objector wasn’t fit to be appointed as the guardian ad litem on the grounds that her conduct disqualified her. It was urged that she fraudulently raised finds ostensibly for the funeral of Paul Kanyora, which she never remitted, mistreated and humiliated him, and her conduct was unbecoming and unsuitable. He urged that I dismiss the said application and allow that of 10th May 2024.

23. In her oral and written submissions, the learned counsel for the Objector urged that the minor lives with the Objector and had done so since birth. She stated that the objector’s character had been questioned only because “there was an estate to be shared.”

24. Ms Mulago submitted that the question before the court was about who, between the mother who had lived with the child since birth and an aunt who had been absent in his life, had the child’s best interest at heart. She urged that there was no reason to unseat the objector from the position of a guardian ad litem. The allegation against the objector was not backed by evidence.

25. Ms Mulago urged the Court to consider and apply the doctrine of the best interest of the child and “reject sideshows and the aggressive display of personal vendetta aimed at the objector”. She relied on Article 53(2) of the Constitution of Kenya, 2010 and sections 8 of the Children Act, 2022.

26. Regarding the application dated 10th May 2024, counsel for the Objector stated that the prayer for a stay of proceedings had been overtaken by events as both applications were heard on 1st July 2024. She submitted that the administrators could not be trusted to act in the child's best interest.

27. Ms Mulago submitted that since the duties of the guardian ad litem included scrutinizing and determining what is owed by the estate of Paul Kanyora, she doubted the real motive behind the petitioner’s application and prayed that I decline to issue the prayers they were seeking.

28. Counsel stated that Kingshown’s position had been both appropriated and reprobated as the minor’s paternity was recognized in paragraph 7 of the affidavit in support of the summons and that he had thereafter been attacked as not being a child of his father. The counsel thus urged that the application be dismissed

29. Mr Otieno learned counsel for Harrison, Francis, Teresia Njoki and Jane Nyambura Kimani supported the Summons for Confirmation of Grant. Counsel stated that family members had entered into a deed of family agreement, which had not been set aside, nor had the grant been revoked. He submitted that the minor had a claim for a different estate and that a petition for a grant should be made pursuant to separate proceedings wherein the beneficiaries of the estate of Paul Kanyora could be ascertained.

30. Regarding the Objector’s application, Mr. Otieno reiterated his submissions. He urged that the grant be confirmed and the proceeds due to Paul Kanyora’s estate be deposited in Court until his heirs are determined.

31. I have considered the two applications and the responses thereto. I must now determine if the child Kingshown Kimani is a son of Paul Kanyora and, if so, whether he is a beneficiary of his grandfather’s estate. Further, since Kingshown is a minor, I must appoint a guardian ad litem who shall manage his properties until he reaches the age of majority.

32. The urgent need to confirm the grant is self-evident. The annexures attached to the affidavit supporting the application dated 10th May 2024 are clear that the estate will be wasted unless the grant of representation is confirmed. There was no serious contestation on this point.

33. Was Kingshown the son of the deceased? I note that the supporting affidavit of Margaret Mwihaki, sworn on 20th March 2024, has an annexure “MM2”, which is the birth certificate of Kingshown Kimani, a child born on 15th May 2012. His parents are indicated as being Paul Njoroge Kimani and Margaret Mwihaki Ngige. A copy of the said birth certificate is annexed to the affidavit of Camilla Wambui Kimani as annexure “CWK1. ”

34. . The Court in N E O v H W K [2018] eKLR stated that“suffice it to note that a birth certificate is proof of paternity but not the only and final prove…”

35. The paternity of the minor does not appear to be in serious contestation. Camilla, in her affidavit in paragraph 2, states that “ the decision to make me the legal guardian of Kingshown Kimani was made by our late brother Paul Njoroge Kimani alias Paul Kanyora in a desperate bid to identify with fatherhood and to acknowledge Kingshown as his son despite the drama surrounding his paternity originating from his biological mother, Margaret Mwihaki”.

36. It is thus clear that the deceased, Paul Kanyora Koigi, saw Kingshown as his own child and held him out as such. Section 3(2) of the Law of Succession Act states that:-“reference in this Act to “Child” or “children” shall include a child conceived but not yet born (as long as that child is subsequently born alive) and in relation to a female person, a child born to her out of wedlock, and in relation to a male person, a child whom he has expressly recognized, or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility.”

37. Given the contents of the Summons for Confirmation of Grant, it is evident that the Petitioners do not doubt the child's paternity. It would appear to me that the deep animus between them and Objector, which is evident from the averments made in the affidavits filed, drove them into filing the application dated 10th May 2024.

38. Thus, in light of the evidence before me, I do not doubt that Kingshown is the child of Paul Koigi Kanyora and that he recognized him as such. There would have been no need for him to make the arrangements he is said to have made with Camilla regarding the welfare of the child if he had any doubt. Given the foregoing, there is no need for the child to be subjected to a DNA test. Such a test is unnecessary and oppressive. The request for it does not appear to have been made in good faith. I, therefore, decline to issue an order to that effect.

39. Can Kingshown inherit from his grandfather now that his father is deceased? Mr Tindika and Mr Otieno submitted that he cannot. I do not agree with them. I rely on the persuasive authority of the decision of W Musyoka, J in In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR where he held that:-“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit from their grandparents indirectly through their own parents, the children of the deceased. The children inherit first, and thereafter, grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.”

40. The Petitioners clearly understood this and it is for that reason that they sought to have Camilla step in as the guardian ad litem of Kingshown until he attains majority.

41. Who should represent the minor in these proceedings? The Petitioners prefer Camilla Wambui Kimani. The biological mother prefers that she be appointed guardian ad litem. With respect, I do not see why an aunt should be appointed when the child’s mother is alive.

42. In any case, there is a good reason why Camilla may not be a good guardian: the fact that it is said that there are medical claims to be paid out of the entitlement of Paul Koigi Kanyora. In such a situation, Camilla’s interest as a beneficiary on her own account would conflict with that of Kingshown.

43. I allow prayer 2 of the Notice of Motion dated 20th March 2024. As a guardian ad litem, I direct her to take out letters of administration for the estate of Paul Koigi Kanyora so as to ensure that the minor gets his full entitlement in respect of any other properties Paul Koigi Kanyora may have owned.

44. Having made the above determination, I know turn to the Notice of Motion dated 10th May 2024.

45. As parties agree, I confirm the grant issued on 12th June 2023. The estate will be distributed in accordance with the deed of family agreement dated 15th October 2021. The entitlement of Paul Koigi Kanyora will devolve to Kingshown Kimani and be held in trust for him by his mother.

46. I order the Petitioners and the appointed guardian ad litem to negotiate to determine what debts are due from the estate of Paul Koigi Kanyora (deceased). If the parties are unable to agree, either is at liberty to apply to this Court for ascertainment of the figures.

47. I make no orders regarding costs as this is a family matter.

Orders accordingly.

DATED ANDSIGNED AT MOMBASA THE 13TH DAY OFAUGUST 2024. DELIVERED VIRTUALLY VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of: -Mr Tindika, for the Petitioners;Ms Mulago, for the Objector;Mr Otieno BN, for Harrison Kimani, Francis Kimani, Teresia Kimani and Jane Kimani; andArthur - Court Assistant.Page 7 of 7