[2017] KEHC 249 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

SUCCESSION CAUSE NO. 161 OF 2013

In the matter of the Estate of KAMWOCERE KOBUTHI Alias KAMOCERE KOBUTHI (Deceased)

ESTHER WAMBURA NAMU.....................................1ST APPLICANT

JOYCE KANINI EPHANTUS.......................................2ND APLICANT

V E R S U S

PHILISILA KAITHI EPHANTUS.........RESPONDENT/PETITIONER

J U D G M E N T

1. This is an application for revocation of grant dated 25/02/2016 based on three grounds. Firstly, that the proceedings to obtain the grant were defective in substance. Secondly, that the grant was obtained fraudulently by making false statement and by concealment of facts material to the cause. Finally, that the applicants being beneficiaries were excluded in the proceedings and consequently disinherited.

2. The respondent/administrator in her replying affidavit opposed the application on grounds that the applicants were informed of the succession proceedings and declined to participate.

3. The parties gave evidence in support of their arguments and filed submissions at the close of the case.

4. PW1 stated she sent her son PW2 to inform DW2 of the existence of the case. PW2 testified that he took some documents to PW2 to sign but which form was to be signed by PW2. From the evidence of the respondents, there was no evidence of service on the applicants or citation of the intention to file or of the existence of the succession cause.

5. During cross-examination both PW1 and PW2 admitted that the applicants were not involved in the distribution of the estate. should they would have been served with the application for confirmation of grant, the applicants would have filed a protest because it involved L.R. Kyeni/Mufu/3992 which is the bone of contention in this application. In that case, the court would have given them a hearing.

6. Section 76 of the Succession Act empowers this court to annul or revoke a grant if the applicant demonstrates that the grant was defective in substance; or it was obtained without material disclosure.

7. In this application, it is not in dispute that the deceased had two houses. The law requires that both houses who form the beneficiaries be involved in the succession proceedings. The administrator/respondent had a legal duty to include the applicants as beneficiaries in the succession cause which she failed to do. The names of the applicants were included in Form P&A 5 but this inclusion is of no effect for they were not aware of this cause.

8. It is my considered opinion that the applicants have demonstrated that the respondent failed to disclose to the court that they had not been cited or served with the relevant documents in this cause. This is a valid ground for annulment or revocation of the grant.

9. The parties in this case gave evidence on distribution of the only asset of the deceased LR. Kyeni/Mufu/3992 measuring 0. 20 ha. To prevent duplication of proceeding and waste of precious judicial time, this court will proceed to deal with the issue of distribution in this application. The parties have adduced their evidence on distribution of the contentious property.

10. The applicant's case is that the deceased distributed his estate to his family members during his lifetime. His land L.R. Kyeni/Mufu/1654 was sub-divided and distributed as follows:-

1. Philisilla Kaithi Ephantus (1st widow) - L.R. 3998

2. Rose Warue Kamwocere (2nd widow) - L.R. 3992

3. Elijah Njeru Kamwocere (son) - L.R. 3996

4. Hespon Ndwiga Kamwocere (son) - L.R. 3995

5. Jenardo Njeru Kamwocere (son) - L.R. 3996

6. Eliud Mwaniki Kamwocere (son) - L.R. 3997

11. The 1st applicant testified that she funded the sub-division and was to be refunded by each child of the deceased as directed by her father. None of the children who benefited from the land refunded to the 1st applicant any amount used for sub-division o their respective parcels. The deceased then gave her one (1) acre of land to cover the money she had given now L.R. No. Kyeni/Mufu/3993.

12. The applicants further testified that they have no interest in the parcels of land given to the respondent and her children namely L.R. Kyeni/Mufu/3994, 3995, 3996, 3997 and 3998. The 1st applicant's interest as well as that of her sister the 2nd applicant is L.R. Kyeni/Mufu/3992 which was given to their mother Rose Warue by the deceased. The parcel remained in the name of the deceased but their mother lived there, cultivated the land until she passed on. The deceased also lived with the applicant's mother on the land till he died on 11/04/2006.

13. It is the case of the applicant's that they should inherit the land set aside by the deceased for their mother. Philisila was given her portion L.R. Kyeni/Mufu/3998 on which she has been residing and cultivating since 1994 when the sub-division was done. Her children also live and use their own parcels as allotted to them in 1994.

14. The respondent’s case is that the applicants should share the one acre parcel Kyeni Mufu/399 given to the 1st applicant by her late father. As for L.R. Kyeni/Mufu/3992, it should remain in the joint names of the respondent and her two sons Elijah Njeru and Hespon Ndwiga as per the grant issued and confirmed on 02/02/2016.

15. It is not in dispute that the deceased transferred L.R. Kyeni/Mufu/3993 to the 1st applicant during his lifetime. The respondent’s only contention is that it is not the applicant who funded the sub division. The 1st applicant got the title processed in her name in 1995 about eleven (11) ears before the deceased died. The respondent did not include this land as an asset of the deceased in this case because she knew very well that it was the property of the 1st applicant.

16. The evidence of the parties is that the deceased distributed his land L.R. Kyeni/Mugu1654 to his two wives and children in 1994. The titles remained in the names of the deceased but each was given possession of their respective parcels.

17. As for L.R. 3992, this land was given to the 2nd wife Rose Warue and she lived on it together with the deceased and used it during her lifetime. Upon her death, the 1st applicant made it clear in her evidence that she has not put up a home on her parcel of land L.R. 3993. The original title of L.R. Kyeni/Mufu/3992 was left to her by her mother. Nevertheless, the respondent upon the confirmation of the grant caused the land to be inherited by herself and her two sons.

18. The law requires under Section 42 of the Act that the shares given by the deceased to the beneficiaries during his lifetime, be taken into account in the distribution of the estate. However, none of the beneficiaries is complaining of the shares given to them as such. The court will therefore focus on the only asset in dispute, L.R. Kyeni/Mufu./3992.

19. The respondent admit that she was given her share as the 1st widow of the deceased L R 3995. She however disputes that L R 3992 was allocated to the 2nd widow and argues that it was the only asset for distribution which should be taken by herself and her two sons. It is not in dispute that the respondent has married daughters who are not claiming any share in their fathers estate and that all her four sons were catered for by the deceased during his lifetime.

20. If deceased gave his first wife half an acre on which she established her home, this renders the applicants' evidence credible that their mother the 2nd wife was given L.R. 3922 which is equal in size to that of the respondent and to the parcels given to the sons of the respondent. The deceased could not have intended to disinherit his 2nd wife who lived with him in the same home on the disputed land for many years after the sub-division of the original parcel.

21. The 2nd wife established her home on the land LR 3992 where she lived with her children till she died. DW2 confirmed this in his evidence. From the mode of distribution adopted by the deceased, it falls in place that LR 3992 was given to Rose Warue the applicant’s mother as her share. The deceased did not transfer the land to her name upon sub-division just like was the case in all other parcels. Each beneficiary were to process their titles later depending on the availability of funds as the 1st applicant told the court. With her she moved with speed and processed her titled for L.R. Kyeni/Mufu/1393 within one year.

22. The applicants were not given any shares by the deceased during his lifetime. What the 1st applicant got was land to compensate her for the money she gave to the deceased for subdivision. Her evidence to that effect was supported by that of the 2nd applicant.

23. The 2nd respondent said in cross-examination that the 1st applicant was in gainful employment at the material time working with Makomboki Tea factory. She was therefore in a position to fund the sub-division of the land which request was made by her father. The respondent did not give evidence of any other source of funds that was available to meet the cost of for the sub-division. It has been established that L.R. 3993 was not an inheritance from the deceased for the 1st applicant paid for it.

24. This scenario leaves the applicants who are children of the deceased with no inheritance. For them, they are claiming their shares unlike the respondent’s daughters. If the respondent and her sons who have already been catered to take LR 3992, they will have benefited twice. The deceased had no intention of taking back from Rose Warue what he had given her to use with her children and on which her home stands. It would be unfair and against the law for the respondent and her children to take what was intended for 2nd house of he deceased. Section 40 of the Act treats all the children of the deceased equally and there is no reason why the applicants should be disinherited.

25. It is my considered opinion that the applicants have established their entitlement to L.R. 3992 and the same should be bequeathed to them.

26. For the foregoing reasons, I make the following orders:-

(1) That the grant issued to the respondent Philisilah Kaithi Ephantus and confirmed on 30/10/14 be and is hereby revoked.

(2) That fresh letters of administration do hereby issued in the joint names of Philisilah Kaithi Ephantus and Joyce Kanini Ephantus.

(3) That the grant is hereby confirmed to the effect that Joyce Kanini and Esther Wambura be registered in equal shares as proprietors of L.R. Kyeni/Mufu/3992.

(4) That Kyeni/Mufu/3994 which is not in dispute remains in the name of Ndwiga Kamwocere and forms part of the distribution in the confirmed grant herein.

(5) That the title issued to the respondent Philisilah Kaithi Ephantus and her sons Elijah Njeru Kamwocere and Hespon Ndwiga Kamwocere in respect of Kyeni/Mufu/3922 be and is hereby cancelled and replaced with the proprietorship of the applicant as per order No. (3) above.

(6) That there will be no orders as to costs.

27. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OF NOVEMBER, 2017.

F. MUCHEMI

J U D G E

In the presence of:-

Ms. Muriuki for Njeru Nyaga for respondent

Mr. Andande for Gatumuta for applicant