[2017] KEHC 9640 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT NAIROBI

SUCCESSION CAUSE NO 325 OF 2013

IN THE MATTER OF THE ESTATE OF KARANJA MAKUMI (DECEASED)

JUDGMENT

1. On the 15th February 2013 William Makumi Karanja and Lydia Wairimu Karanja petitioned for a grant for the estate of their father Karanja Makumi who died intestate on the 7th June 2012. On the 20th June 2013 John Kamau Karanja who had not signed the petition was served with a notice by the petitioners to show cause why the grant should not be issued to the 2 petitioners. A grant was issued to the petitioners on the 3rd of November 2014.

2. On the 16th of April 2015 the petitioners filed a Summons to confirm the grant under Section 71 of the Law of Succession Act, Rules 49 & 73 of the Probate and Administration Rules. In the said application they sought to have the cautions placed by John Kamau Karanja and Samuel Mbuthia Karanja on L. R Kiganjo/ Gachika/ 392 and Komothai/ Kibichoi/441 being beneficiaries to the estate removed.

3. In their affidavit they list the following beneficiaries;

a) William Makumi Karanja-son

b) Lydia Wairimu Karanja-daughter

c) John Kamau Karanja-son

d) Paul Njoroge Karanja-son

e) Reginah Ngendo Kamundi- daughter

f) Mary Wambui Karanja-daughter

g) Samuel Mbuthia Karanja-son

The properties listed are Komothai/ Kibichoi/441, Kiganjo/ Gachika/392, Kiganjo/ Gachika/760, Komothai/ Kibichoi/711/1 “A”, Komothai/ Kibichoi/711/9, Kiganjo/ Mutati/T.666/17, Unilever Tea (K) Ltd Ordinary Shares No. 286, Kiberethi Coffee Estate Ltd Ordinary Shares No. 75 and Kibichoi Trading Co. Shares No.70. The petitioners have suggested the mode of distribution as per attached schedule.

4. On the 12th of May 2013 John Kamau Karanja a son of the deceased and one of the beneficiaries filed an affidavit of protest. His case is that the petitioners left out certain properties namely;

a) Brooke bond c/o KTDA Shares & Kibichoi Trading Company-70 Shares

b) Komothai/ Kibichoi/711/4

c) Komothai/ Kibichoi/711/5

d) Ruiru Plot 126

e) Kinale/971

f) Kiganjo Location Ranching Company No.171

g) Kiganjo Location No.1228.

His explanation is that he placed a caution on one of the properties because there was risk of it being interfered with and or being meddled with being transacted or being sold prior to completion of the succession matter. That the petitioners had already commenced on the subdivision process physically by engaging a surveyor and doing the actual physical division.

John Kamau Karanja filed various affidavits dated 11th May 2015, 6th July 2015, 8th February 2016, and 24th March 2016. This what he deposes in the additional affidavits filed after 11th May 2015; in his affidavit dated 6/7/2015 he states that the applicants failed to disclose that parcels No. Thika Municipality/ Kiganjo Farmers Block 30/1223, Thika Municipality/ Kiganjo Farmer block 5/171 and 4 other plots were part of the deceased’s estate. That the said parcels of land was given to William and Lydia to manage and he was given Kiganjo/ Gachika/ 392 and Kiganjo/ Gachika/ 760. That land parcel no. Kinale/ Lari/971 which is 5 acres was given to Paul Njoroge Karanja and Joseph Kamundi Karanja to manage, that Paul is still in possession together with the wife of his late brother Joseph, Regina Ngendo Kamundi. That land parcel Komothai/ Kibichoi/ 441, Plot No. Komothai/ Kibichoi/711/1 “A”. Komothai/ Kibichoi/711/9, Kiganjo/ Mutati/T.666/17, Unilever Tea (K) Ltd ordinary shares No. 286, Kiberethi Coffee Estate Ltd, Ordinary shares no. 75 and Kibochoi Trading shares No. 70 were under the development and management of their late father before he got sick and thereafter under the management of the late Hannah Njeri Karanja until her death. That he is not aware of his late father having done anything to sell or transfer the Thika land parcels and plots together with the Kinale / Lari parcel to anybody. That William and Lydia are in occupation of the Thika land parcel and are developing them. That his father had a coffee milling machine which are in the possession of William Makumi. That at one time he resigned from work so as to manage parcels numbers 392, 760 and 441 to enable his father pay the agricultural loan he had with AFC and for the said work done he demands Kshs. 396,000/- from the siblings. That if he had not rescued parcel no. 441 his siblings would have nothing to share. That his brothers and sisters hired a surveyor to survey land parcel Komothai/ Kibichoi/ 441 and he was given the portion which is at the bottom near the river in his absence and without his consent instead of surveying the land making the boundaries. That the parcels of land under the management of William, Lydia, Joseph and Paul have been omitted. In his affidavit dated the 8/2/2016 he explains why he was once in jail and avers further he visited the offices of Kiganjo Location Ranching Company and he was told by Mr. Githongo that his father accompanied by his brother William his mother and sister Lydia went to the said office and transferred land parcels to William Makumi, his mother and Lydia. That this was unacceptable as his father by then had developed sickness and was mentally confused, he could not walk and didn’t know anything for over 15 years before he died. That whilst this matter was being heard he went back to Mr. Githongo to know the status of his father’s share but Mr. Githongo changed his mind and told him that William is the one who bought the shares that this is not true for William was in school in the year 1972 when it is said he bought the 2 shares. That his father’s signature on the transfer forms was a forgery. That William and Lydia illegally grabbed the said parcels of land. He annexed a letter from Mr. Githongo and Simon officials of Kiganjo Location Ranching showing 2 abstract of titles showing Lydia and William as owners of the land properties in question. He also annexed the mutation form which portioned and subdivided escarpment Kinari Block 1/971 which was subdivided into two new titles number Escarpment Kinari 1/2838 and 2839 which are owned by Paul Njoroge Karanja and Joseph Kamundi Karanja. That the said land was given by government to his late father and his father gave a portion of a plot to Kiereini Secondary School for classes in exchange. That William vandalised and sold parts of the milling machine to Zacharia Njogu Kariuki and George Kagumu Karanja on 29/10/2015. In his affidavit of 24/3/2016 he avers that his father surrendered land parcel Kibichoi/ Komothai/239 T to J.G Kiereini School and was compensated by land parcel no. Escarpment/ Kinari Block 1/971 which Joseph and Paul subdivided as per the mutation, which was done when his father was mentally sick. That he wishes to have all properties left out Juja/ Juja East Block 1/588, plot Thika Municipality Block 30/1583, Plot No. Thika Municipality Block 30/1681, Juja East Block 1/593, plot no. Thika Municipality block 30/1145, plot no. Thika Municipality Block 30/2288 shared amongst all of them.

5. The applicant adopted his affidavits as his evidence. During cross-examination he denied attending any family meeting nor signing the consent to the letters of administration. He was taken through his annexures the mutation form and green card.

6. The applicant called 3 witnesses in support of his case. Pw2 George Kigumo Karanja testified that in 2015 he introduced William Makumi to one Zachariah Njogu Kariuki who bought the milling machine for Kshs. 150,000/-. He was aware that the family agreed to sell the machine John Kamau was not at the said meeting. He was paid 5000/- as a broker. Pw3 David Kibue Gakuru testified that he was employed by the deceased in 1973 as a casual in his farm at Kibichoi Korokoro parcel no 44. He recalled that the deceased got sick and had mental disorder and he stayed that way till his death. That Hannah the deceased’s wife took control after her husband got sick. She also got sick and died. William took over thereafter. In cross-examination he stated that he worked for the deceased for ten years from 1973. Pw4 Njoroge Kaira Peter testified that the deceased bought parcels land no Kiganjo/ Gichika 392 and 760. He saw the applicant work for his father in the said parcels of land. At one time he learnt the applicant had been arrested and jailed but he was later released and he resumed working for his father.

7. The Petitioner responded to the applicant’s protest through his affidavits dated 11th June 2015 and 3rd September 2015. This is his evidence; they as administrators of the deceased’s estate they do not know of other properties of the deceased that were left behind apart from what they have pleaded. That there is no documentary evidence that the deceased left behind other properties. That the shares known as Broke bond c/o KTDA Shares and Kibichoi Trading Company 70 shares are in the schedule of distribution and have been divided equally. That in line with the wished of their late mother they subdivided their respective portions which they occupy and the applicant is a beneficiary of the subdivision and lives on his portion. That the subdivision of L. R. Komothai/ Kibochoi/441, L.R No Kiganjo/ Gachika 392 and L.R. Kiganjo/ Gachika 760 was done 4 years before the matter in court and the same can only be formally done after the grant is confirmed. That in 2008 their late mother proposed that L.R Kiganjo/ Gachika 760 of 1. 48Ha and L. R Kiganjo/ Gachika / 392 of 2. 24ha be shared as shown in the schedule. The protestor was aware of the same. That the properties are too small to be divided into 7 portions and that’s why parcel no. 760 is being divided between William and Samuel Karanja, parcel no. 392 goes to the objector and Paul Njoroge and Reginah Ngendo Kamundi. Lydia Wairimu and Mary Wambui have been left out of the said properties. That the income from Komothai/ Kibicho/711/1 is shared during the family meetings which the protestor has stopped attending despite him being informed of the same. That his share of about Kshs.40, 000/- is safe and can be given to his lawyer for onward transmission. On the milling machine he stated that it was vandalised and it’s not in his possession , it was sold as agreed by the family and the applicant’s share of Kshs. 19,000/- is available. On the demand to be paid for work done when the applicant worked for their father, the petitioner’s response is that if the applicant worked as claimed then he was paid and since they did not retain him they cannot pay him as they were not privy to the said contract. That their father was not in debt and there is no auctioneers notice or statutory notice attached nor has the objector shown evidence of what he paid. That the objector has not proposed any alternative mode of distribution. During cross-examination he stated that there is a shop in plot 711/1 “A” .That when their mother was alive she collected the rent that is from 2002 to 2010, he took over receiving the rent from May 2010. That they have a record of the rent received the protestor received his share last in 2015. He denied transferring property to himself when his father was sick. That the 2 properties the applicant claims he transferred he bought it in 1980.

8. Parties filed written submission which I have read together with the authorities attached. The protestor has reiterated his evidence and raised 4 issues for determination; whether the objector is justified to get a share of the rent income, whether the deceased was in a good mental condition to oversee any transaction, whether the properties left out of the schedule of distribution and whether the whole estate should be redistributed. The protestor demands that a statement outlining the rental income should be produced and the objector given his rightful share. That parcels no. 971 was transferred when the deceased was mentally sick, the transaction was illegal and should be nullified. On the properties left out it’s the protestor’s submission that the properties he listed should be included in the schedule of properties and divided amongst the beneficiaries. The objector relied on 3 cases, Inthe Matter of Wilson Nzuki Ngolo Succession Cause No.152 of 2000, the Estate of Charles Karuga Koinange, Succession Cause 998 of 2006 Dr. Rosemary Koinange vs. Susan Mugure and anotherandIn the Estate of Esther Wanjiku Maina Succession Cause no 362 of 1993, Harrison Kariuki Maina vs. Robinson Gathii Maina & others.

9. The petitioners in their submissions evaluated the evidence and the issues raised by the protestor and submited as follows; that the objector has failed to prove the alleged fraud committed by the petitioners in relation to parcels no. Thika Municipality 30/1223, 5/171 and Kinale/ Lari/971 which belong to the administrators. That fraud requires a high standard of proof. The administrators relied on Civil Appeal No. 329 of 2000 Richard Onditi vs. Kenya Commercial Bank ,the Court of Appeal while addressing fraud found that, “ Fraud and collusion are very serious accusations and require a very high standard of proof, certainly above mere balance of probabilities and the bare allegations put forward by the appellant do not therefore avail him’..Reliance was also made on Sections 107 and 108 of the Evidence Act which provide that he who asserts must prove that the facts exist and that the burden of proof relies on the said person. That the protestor did not produce any title deeds mutations forms or share certificates indicating that the properties he listed once belonged to the deceased and that the said properties had been transferred by the administrators fraudulently. That correspondence produced does not show the particular parcel owned by the deceased. That under Section 26 (1) of the Land Registration Act the title of a registered proprietor is prima facie evidence that the proprietor is the absolute and indefeasible owner of the land subject to any encumbrances, easements restrictions and conditions contained or endorsed in the certificate. That the protestor has listed properties in the administrators’ schedule. That the protestor’s claim of Kshs.396, 000/ is time barred as the protestor resigned from work in 1986 and neither was it proved.

10. I have considered the evidence adduced, the submissions and the law. The issues to be considered are;

i. Whether the objector has proved that the properties he listed were omitted from in the schedule of properties submitted by the administrators

ii. Whether the grant should be confirmed on the proposed mode of distribution or it be redistributed.

The objector is a son of the deceased. His main issue is the administrators did not include all of the deceased’s properties. He listed the following properties in his affidavit dated the 11th of May 2015;

a) Brooke bond c/o KTDA Shares & Kibichoi Trading Company-70 Shares

b) Komothai/ Kibichoi/711/4

c) Komothai/ Kibichoi/711/5

d) Ruiru Plot 126

e) Kinale/971 5 acres

f) Kiganjo Location Ranching Company No.171

g) Kiganjo Location No.1228.

In his affidavit dated the 6/7/2015 he added the following properties:

i) Thika Municipality/ Kiganjo Farmers Block 30/1223, block 5/171 and four other plots

11. Has he proved that the deceased owned the said properties or shares? As submitted he who alleges must prove his case. (See Section 107 and 108 of the Evidence Act). It was the duty of the objector to demonstrate that the deceased owned the said properties. In his affidavit dated the 8/2/2016 he attached a letter from Kiganjo Location Ranching that states that; share certificate 1379 was bought and registered in the name of Hannah Njeri Karanja which owned shamba no Juja/Juja/ East Block 1/588, plot no Thika Municipality Block 30/1583 Hannah transferred to KGMS church and another plot no Thika Municipality Block 30/1681 Hannah transferred to Lydia Wairimu Karanja and that she only left parcel no Juja/ Juja East Block 1/588. These properties are not part of the deceased’s properties and therefore cannot form part of his estate.

12. The letter dated 15/10/2015 further states that the share certificate was bought and registered in the name of D. Makumi which owned Juja/ Juja East Block 1/593, plot no Thika Municipality Block 30/1145 which is currently owned by William Makumi Karanja and another plot no Thika Municipality Block 30/ 2288 which William transferred to Christine Njoki Makumi. That sometimes back in 1983 D. Makumi attended the company’s office accompanied by his father Karanja Makumi and another elder Njoroge Makumi and Karanja Makumi told them that he has bought the share no 183 on behalf of the son David Makumi and that he would like his name changed to correct the name William Makumi Karanja and the same was done. The protestor claims that at the time the change was made his father was mentally ill. He called a former employee to corroborate his evidence on this issue. Has he shown that the deceased was unwell at the time of the transfer? Unlike the Charles Koinange (supra) case where there was medical report on the deceased’s mental status the objector has only the evidence of a former worker who gave no evidence on how the deceased dealt with his properties. The allegation made by the objector needed to have been supported by more evidence to persuade this court that the deceased had no capacity to transfer the properties. He did not even call the officials who wrote the letter who could have shade light on the state of the deceased’s mind at the time he made the transfer. He failed to show the alleged interference by William and Lydia in the offices of Kiganjo Location Ranching and Land Offices Kiambu and Thika which caused his failure to procure documents to show that they grabbed the land illegally. He would have sought a summons for the said witnesses to have their evidence tested in court. The allegations made have not been proved. Fraud has not been proved. I therefore find that the properties listed by the Objector are not part of the deceased’s properties.

13. he Objector also annexed a mutation form on the parcel Escarpment Kinari Block/971 and claims that from the mutation form the land was partitioned and subdivided in two new titles Kinari Block 1/2838 and 2839 which are owned by Paul Njoroge and Joseph Kamundi Karanja. He alleges that the land was given to his late father by the government after his father gave a portion of his land to Kiereini Secondary School. The mutation form shows that the said exercise of subdivision happened in April 1997 when the deceased was still alive. According to the administrator this subdivision was done with their mother’s consent. I have looked at the documents attached to the objector’s affidavit dated the 24th March 2016 and I note the following; there is a letter to the District Officer on land compensation Kinale 971 is mentioned, The letters do not state whether the said parcel of land was eventually given to the school. Am unable to decipher some of the annexures which were not even explained at the hearing. A litigant should attach documents which will clearly explain his case, again he who alleges must prove his allegations. The objector has no other documents on the other properties.

14. On his claim for Kshs. 396000/- for work done when he worked for his late father, I wonder why he has sought to make this claim now, should he not have claimed his pay from his father? Why raise it after his demise. He has also not shown his contribution to rescue the parcel of land that was to be auctioned. I find this claim an afterthought and agree with the administrator’s submission that they were not privy to the said contract. All in all I find that the objector has failed to demonstrate that the properties he listed in his affidavits were left out some are actually included in the schedule as shown by the administrators.

15. I have looked at the schedule of distribution attached to the application for confirmation of the grant. The objector has not raised an objection to William and Lydia being administrators. His issue was with the properties left out which I have made a finding on. I have keenly looked at the schedule and note that the objector has been given an equal share in the properties listed including the shares. The administrators have stated that the coffee milling machine was sold and his share of the proceeds is available he should collect the cheque from his lawyer. On the rental income the administrators have indicated that the objector’s share is available. He should sit with his brother William go through the record that is being kept and he be given his share. The objector should make an effort to reconcile with his siblings for the smooth administration of the estate. The protest is dismissed and the cautions placed by John Kamau Karanja and Samuel Mbuthia Karanja on L.R. Kiganjo/ Gachika/392 and Komothai/ Kibichoi 441 shall be removed to enable the administrators complete the administration of the deceased’s estate. There is no objection from the rest of the beneficiaries they all consented to the mode of distribution. The grant issued to the William Makumi Karanja and Lydia Wairimu Karanja on the 3rd of November 2014 is hereby confirmed. The estate shall be determined as stated in the scheduled dated the 16th April 2015 attached to the administrators affidavit dated the 16th April 2015. Since this is a family matter and to promote unity in this family there shall be no order as to costs. It is so ordered.

Dated signed and delivered this 2ndday of November 2017.

R. E OUGO

JUDGE

In the presence of;

John Kamau in person Objector

Miss Theuri H/B for Mr. Makumi For the Administrators

M/s Charity Court Clerk