[2022] KEHC 1095 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2505 OF 2004

IN THE MATTER OF THE ESTATE OF JOSEPHINE WAMBUI MWANGI (DECEASED)

DAVID NDUNGU KINUTHIA...............OBJECTOR/ADMINISTRATOR

VERSUS

CAROLINE WAMBUI..........................APPLICANT/ADMINISTRATOR

RULING

1. The deceased Josephine Wambui Mwangi died on 6th March 2004. She had a son David Ndungu Kinuthia (objector/administrator) and daughter Jane Njoki. Jane Njoki died while the deceased was still alive. She let four children:-

a) Caroline Wambui (applicant);

b) John Henry Mwangi;

c) Irene Wanjiku; and

d) David Ndungu Kinuthia.

2. The applicant petitioned this court for grant of probate. She stated that the deceased had left a written Will dated 28th April 2000. She was issued with a grant of probate. She sought its confirmation and produced a consent she said the objector had signed. The grant was confirmed and the estate distributed.

3. The objector complained to the police that the deceased had not left any Will; that the said Will was a forgery. He also complained that the signature attributed to him was a forgery. The applicant and her brother John Henry Mwangi were prosecuted in Kibera CM Criminal Case No. 3413 of 2013with forgery contrary to section 348of the Penal Code. They were each convicted and sentenced to serve term. They unsuccessfully appealed to the High Court. They have an appeal pending in the Court of Appeal.

4. The objector filed an application dated 7th July 2009 seeking the revocation of the grant of probate as confirmed on the basis that both the Will and his signature had been forged. On 22nd February 2021 this court found that the Will and signature were indeed forgeries, and that the applicant had acted fraudulently in getting the grant and confirming the same. The grant as confirmed was revoked. A joint grant of letters of administration intestate was issued to the objector and the applicant. They were asked to apply for the confirmation of the grant. The objector filed an application dated 12th April 2021 seeking the confirmation of the grant.

5. The applicant filed a motion dated 27th September 2021 seeking the stay of the hearing and determination of the application dated 12th April 2021 pending the appeal (Appeal No. E004 of 2020)filed in the Court of Appeal to challenge the conviction and sentence. It is in an appeal against the High Court decision that confirmed the subordinate court’s decision on conviction and sentence. The applicant stated in her supporting affidavit that she has a good appeal, and went on to demonstrate why she believed so. She stated that if the appeal will be successful it will bind this court and overturn its decision on revocation. It is notable that the applicant has not appealed against the ruling of 22nd February 2021 by this court to revoke the grant of probate that had been issued and confirmed to her.

6. The applicant opposed the application which he said was frivolous and only meant to prevent him from benefitting from the estate of the deceased. He did not think that the applicant had any chance of success in the Court of Appeal.

7. The application was brought under sections 47, 70, 72and76 of the Law of Succession Act and rule 73 of the Probate and Administration Rules.

8. This court’s jurisdiction and discretion under Order 42 rule 6 of the Civil Procedure Rules have not been invoked. The applicant essentially relied on section 47 of the Act and rule 73 of the Rules.

9. Section 47 of the Act provides that:-

“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:

Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”

Rule 73 of the Rules states that:

“Nothing in these Rules shall limit or otherwise affect 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.”

10. I have stated that the applicant has not challenged the decision of this court. She has not proceeded to the Court of Appeal. During the hearing of the application for revocation her case was that the issue of her conviction had not been conclusively determined because of the appeal to the Court of Appeal. In her counsel’s written submissions, she urged as follows:-

“In this particular case the appeal against the conviction and sentence of the 1st and 2nd respondents is yet to be conclusively determined thus rendering the Objector’s Application which relies on that conviction premature.”

This court nonetheless went ahead and determined the application against her, and revoked her grant of probate.

11. This court cannot estimate the chances that the applicant may have on appeal. Secondly, the deceased having left two children, each has a prima facie equal claim to the estate that she left. It is on that basis that the estate shall be distributed. The applicant cannot therefore claim that if the application for confirmation proceeds and the estate is shared, there will be any particular loss, substantial or otherwise, that she may suffer in the fullness of time. Thirdly, the distribution of this estate has been outstanding since the death of the deceased in 2004. Litigation has to come to an end. Lastly, where one seeks the discretion of the court he must demonstrate that he is deserving of the discretion. On this particular occasion, and given the history of the dispute, the applicant is not a deserving person. The criminal court has found her to be a fraud as against the estate of the deceased.

12. On his part, the objector, through his application dated 12th June 2021, sought the release of rental income that is being deposited into court monthly to him to cater for his medical and other bills and for fees for his advocates Mwaure & Mwaure Waihiga Advocates. The court ordered that rental income accruing from Dagoretti/Riruta/T.103 be deposited into court monthly following the application of the objector. It was made on 14th July 2020. In the grounds and supporting affidavit, the objector stated that he is 75 years old and sickly, and requires about Kshs.50,000/= monthly for his bills. He stated that between 6th March 2004 and 14th July 2020, the applicant and her brother had collected about Kshs.45,975,000/= in rent from the property and also from Dagoretti/Riruta/T.102, both properties of the estate of the deceased, and had used it alone without sharing with him. Yet, according to him, he was entitled to 50% of the rent. He further stated that he has since not paid his advocates, and so he wants part of the rent to pay his advocates.

13. This application can be dealt with rather quickly. Ideally, the medical expenses of the objector are not a liability against the estate of the deceased. Prima facie, the advocates he instructed shall be paid by him. They were not instructed by the estate. In any case, who should pay the advocates, and how much should be paid, will be the subject of taxation, if there was no agreement between them as regards fees.

14. Secondly, before distributing the estate of the deceased, the applicant, who had probate, shall account to the court and to the beneficiaries regarding all the money received on account of the estate and how the same was applied.

15. If the basis of the objector seeking that the rental income be deposited into court was his complaint that the applicant and her brother were intermeddling with the estate of the deceased by collecting and sharing the rent, then it would be wrong for the court to sanction, before the grant is confirmed, the utilisation of the rent by him or his advocates.

16. But more important, in distributing the net estate of the deceased to the beneficiaries, the court will take into consideration what the applicant and her siblings may have arrogated to themselves from the time the deceased died to the time of distribution.

17. In conclusion, I dismiss the application dated 27th September 2021 with costs. I also dismiss the application dated 15th November 2021, but make no order as to costs.

18. So that there is progress in this matter, I ask the applicant and her siblings to respond to the application dated 12th April 2021 for the confirmation of the grant by proposing how they want the estate of the deceased to be shared. They should do this within 30 days from today. The application shall be heard orally on 4th July 2022.

DATED and SIGNED this …………………. day of MARCH 2022

A.O. MUCHELULE

JUDGE

DATED and DELIVERED electronically at NAIROBI this 28TH day of MARCH 2022

A.O. MUCHELULE

JUDGE