[2017] KEHC 1216 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

SUCCESSION CAUSE NO. 605 OF 2014

In the matter of the Estate of KIMOTHO NYANGUTHI (Deceased)

MARY NJOKI NJERU..........................................APPLICANT

VERSUS

PAUL KAMACIA LAWRENCE.......................RESPONDENT

J U D G M E N T

1. This is a summons for revocation/cancellation of the amended letters of administration made to the respondent Paul Kamacia Lawrence on 26/01/2015 and the confirmation of the same grant made on the same date. It also seeks for orders that L.R. No. Kagaari/Kigaa/37 reverts to the name of the deceased.

2. The evidence of the applicant is that she is a granddaughter of the deceased herein Kimotho Njanguthi the father of the late Lawrence Njue Kimotho. The applicant's father Lawrence Njue Kimotho is a beneficiary in the deceased's estate. He died in 1998 and was survived by two widows namely Agnes Wangai Njue and Esther Wanjira Njue and 12 children. Esther was the mother of the applicant and had 10 children. Agnes had no child and is still alive. The first wife of the deceased was one Teresina Kairu who predeceased her husband. She had two children namely Paul Kamacia Njeru the respondent and one Muturi Njue.

3. The surviving widow Agnes Wangai was joined Esther (now deceased), the respondent Paul Kamacia Njue and one Njue Kimotho a brother to the deceased in petitioning for letters of administration in Embu SRM Succession Cause No. 178 of 1995. The four petitioners were issued with letters of administration intestate which was followed by confirmation of grant. When Esther passed on Agnes Wangai, Njue Kimotho and Paul Kamacia were left as the administrators. Without informing the children of Esther, the three administrators proceeded to apply for amendment of the letters of administration and rectification of the original grant.

4. The court granted a fresh letter of administration to the administrators dated 26/01/2015 and also allowed rectification of the grant. The distribution of the property in the confirmed grant appears as follows:-

L.R. Kagaari/Kigaa/37

(a) Njue Kimotho - 1. 05 ha.

(b)1. Agnes Wangai Raurend

2. Esther Wanjira Njue - 1. 26 ha. in equal shares

3. Paul Kamacia Njue

5. It was the evidence of the applicant that after the death of her mother Esther, her siblings and herself were not informed of the application to rectify the grant which resulted in unfair distribution of the deceased’s property. The house of Esther has 10 children while that of Teresina has two making a total of 12 children in the house of Lawrence Njue Kimotho. The respondent who is a son to Teresina has taken the lion’s share of the land and denied the other eleven (11) children of the deceased their rightful inheritance. These included his own sister Muturi Njue. The applicant further testified that the family of Esther was not involved in the distribution of the deceased’s property.

6. The applicant urged the court to order that the property of the deceased be distributed in accordance with the law whereas all the children will be treated equally. She was supported by all her siblings and the sister to the respondent who were all in court. It is further argued that the current distribution in the grant is unfair to the children because their step mother Agnes and their step brother Paul have allocated themselves two thirds of the property leaving the house of Esther with only one third.

7. The respondent testified that he and one Muturi Njue are the children of the late Teresina. He confirmed the testimony of the applicant that his father Lawrent Njue Kimotho had three wives and only Agnes is alive. He told the court that this cause originally had 4 administrators including himself and that after the death of Esther the grant was rectified. The result was that 3 administrators including himself, Agnes and Njue Kimotho remained in charge of the representation in the estate. He said that distribution of the property according to the three houses of the deceased is fair to all the beneficiaries.

8. The respondent opposed the cancellation of the amended letters of administration and the rectified grant arguing that there was no need to inform the children of Esther about the proposed amendments since they had earlier been represented by their mother. He called two witnesses DW1 and DW2 who supported his evidence. They testified that the distribution of the deceased’s property according to the three houses was fair and went on to say that the deceased had expressed that wish before he died. According to them, the distribution in the rectified grant should be retained irrespective of the fact that the uneven numbers of the children in the house of Lawrence.

9. The respondent has not denied that he failed to inform or involve the applicant and the entire house of Esther of the rectification of grant made on 26/01/2015. This house was also not involved in the distribution of the property that has disadvantaged them due to their numbers. The law requires that every beneficiary be involved in all aspects of a succession cause. It was wrong for the three administrators not to involve one house of the deceased. The distribution was not done in accordance with the provisions of the law of succession. It is my considered opinion that the applicant has proved her case against the respondent on the balance of proablility.

10. After the administrators obtained the orders for amendment of the grant and rectification of the certificate of confirmation, the name of Esther Wanjira Njue who was by then deceased, was still included in the amended letters of administration. The confirmed grant also include her name as a beneficiary which was wrong. This renders the amended grant and its confirmation defective.

11. The law applicable in distribution of the share of Lawrence Njue Kimotho is Section 40 of the Law of Succession Act which provides:-

(1) Where an intestate has married more than once under any system of law permitting polygamy, his personal and household effects and the residue of the net intestate estate shall, in the first instance, be divided among the houses according to the number of children in each house, but also adding any wife surviving him as an additional unit to the number of children.

(2) The distribution of the personal and household effects and the residue of the net intestate estate within each house shall then be in accordance with the rules set out in sections 35 to 38.

12. As I have said earlier, the distribution according to the number of houses was contrary to the law. In view of the foregoing, I hereby make the following orders:-

(1) That the amended grant and its rectification done on 26/01/2015 is hereby canceled.

(2) That the confirmation of grant made on 21/06/1996 is hereby revoked and substituted with a fresh one in the names of Njue Kimotho, Agnes Wangai Raurend, Paul Kamacia Laurent and Mary Njoki Njeru.

(3) That the land of the deceased L.R. Kagaari/Kigaa/37 do revert to the name of the deceased Kimotho Njanguthi.

(4) That the estate be distributed as follows:-

L.R. Kagaari/Kigaa/37

(a)Njue Kimotho- 1. 05 ha.

(b)Agnes Wangai Raurend - 0. 105 ha.

(c)Paul Kamacia Laurent - 0. 105 ha.

(d)Mary Njoki Njeru - 0. 105 ha.

(e)Anisia Gitiri Njue - 0. 105 ha.

(f)Elizabeth Wanja Njue - 0. 105 ha.

(g)Simon Nyaga Njue - 0. 105 ha.

(h)Stephen Gitonga Njue - 0. 105 ha.

(i)Nicholas Muriuki Njue - 0. 105 ha.

(j)Jernado Kinyua Njue - 0. 105 ha.

(k)Muturi Njue - 0. 105 ha.

(l)Mercy Wanja Njue - 0. 105 ha.

(m)Sicily Njeri Njue - 0. 105 ha.

(5) Each party to meet their own costs.

13. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 6TH DAY OF DECEMBER, 2017.

F. MUCHEMI

J U D G E

In the presence of:-

1. Applicant

2. Respondent

3. Six beneficiaries