[2022] KEHC 10820 (KLR)

In re Estate of Kithenge Kibinda (Deceased) (Succession Cause 617 of 2013) [2022] KEHC 10820 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10820 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 617 of 2013

LM Njuguna, J

June 15, 2022

IN THE MATTER OF THE ESTATE OF KITHENGE KIBINDA ALIAS KITHENGE KIVINDA ALIAS KINTHENGE KIVINDA (DECEASED)

Between

Yusta Mbumbui Nthia

1st Applicant

Ciarunji Desderio Kithaka

2nd Applicant

Nancy Thaara Kiura

3rd Applicant

and

Nancy Njura Njuki

Administrator

Ruling

1. Before this court is an application by the applicants and wherein they seek for orders that:i)Spentii)Spentiii)The confirmed grant dated November 3, 2014 be revoked and /or annulled.iv)The titles to land parcel numbers Embu/Gangara/3502 and 3503 be cancelled and reverted to land parcel number Embu/Gangara/857 and in the name of the deceased.v)The registration of the administrator as the proprietor of land parcel number Embu/Gangara/568 and any subsequent transfers and/or subdivisions be nullified, and or reverted to the name of the deceased herein.vi)Costs of the application.

2. The application is premised on the grounds on its face and further supported by the affidavit sworn by the applicants. The applicants’ case is that they are daughters of the deceased and the administrator is their step mother. That the deceased was survived by the following persons: Nancy Njura Njuki (Widow), Ephraim Ngari Njeru,Yusta Mbumbui, Ciarunji Desderio Kithaka and Nancy Thaara Kiura. That the said grant was obtained by means of untrue allegations of facts, fraudulently by making of a false statement or by concealment from court of something material to the case and that the proceedings to obtain the grant was defective in substance. It is their evidence that the beneficiary named in the confirmed grant has sold some land to third parties and that if this court’s intervention is not invoked, then the applicants will suffer irreparable loss of being disinherited. It is their evidence that the respondent never sought their consent during the filing of the succession cause herein and that the respondent has proceeded to implement the grant in a manner which is not acceptable to the applicants as the children of the deceased. They therefore urged this court to revoke or annul the grant herein.

3. Directions were taken that the application be canvassed by way of viva voce evidence.

4. The application is unopposed despite there being evidence of service.

5. I have considered the application herein together with the oral evidence by the applicants and it is my view that the main issue for determination is whether the said application has merits.

6. The application is brought under Section 76 of the Law of Succession Act Cap 160 Laws of Kenya and Rules 44(1) and 73 of the Probate and Administration Rules 1980. Section 76 (a)- (d) provides for revocation of grant and the circumstances under which a grant of representation may be revoked. However, from the perusal of the application herein, the applicants’ ground for seeking the revocation is mainly that the respondent did not disclose their existence as the daughters of the deceased. As such, it is clear that the application is premised on the provision of section 76(c) which provides that a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party or of its own motion on the grounds either that the grant was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case.

7. The power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds but not to be exercised whimsically or capriciously. [See Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000]. As such, for a grant to be revoked/ annulled, the grounds as provided for under section 76 ought to be proved with evidence. Even when revocation is by the court on its own motion, there must be evidence to satisfy the grounds for revocation of grant [ See Matheka and Another v Matheka [2005] 2 KLR 455]. As such, any party making an application for revocation or annulment of a grant must demonstrate the existence of any, some or all the ground(s) which he relies on in challenging the grant.

8. As already noted, the ground in support of the applicants’ application is that the applicants were never involved in the succession cause and as such, the respondent was able to have the whole of the suit land herein transmitted to herself and her son. (They deposed that the respondent herein as the administrator, proceeded to sub-divide the estate without involving them). As such, the applicants’ case is premised on the process of confirmation of the grant herein.

9. The conditions under which revocation can be done are clearly limited to obtaining of the said grant (where the proceedings to obtain the grant were defective in substance; and/or where the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case; and/ or where the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently).

10. What is clear from the above analysis is that revocation proceedings can only be limited to the process of up to issuance of the grant such that even where non-disclosure of material facts or where fraud is alleged, the same can only be limited up to the stage of issuance of the grant. [See re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR].

11. Rule 26 of the Probate and Administration Rules, states as follows:“26(1).Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.(2).An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall in default of renunciation, or written consent in Form 38 or 39, by all persons with equal priority, be supported by an affidavit of the applicant and such other evidence as the court may require.”

12. The import of this rule is that where for instance a petitioner is a child of the deceased, the consent from the other children of the deceased ought to be obtained. A grant is liable to revocation where such consent was not obtained. In the matter of the Estate of Isaac Kireru Njuguna (deceased) Nairobi HC Succession Cause 1064 of 1994 the court found that a grant is liable for revocation where all the heirs have not consented to the mode of distribution and all the properties which make up the estate are not taken into account or distributed. [See also Antony Karukenya Njeru v Thomas M. Njeru [2014] eKLR and In the Matter of the Estate of Muriranja Mboro Njiri, Nairobi H.C. Succession Cause No. 890 of 2003 where in both cases, a grant of letters of administration was revoked since persons with equal priority did not consent to the petitioners therein applying for grant of letters of administration).

13. The applicants herein have submitted that they are beneficiaries to the estate herein and that the respondent secretly obtained the grant without involving them. That the deceased was married two wives (the respondent herein) and their mother - who is also deceased. It was their evidence that they belong to the house of the first wife and that the respondent shut them out of the process of succession thus disinheriting them because they are girls.

14. Having perused the record, more so the chief’s letter and the annexed documents, they clearly indicate that the deceased herein was survived by the following dependants; Nancy Njura Njuki as the wife of the deceased and two sons namely Simon Njeru and Julius Ireri. The respondent equally attached a consent form and wherein, the same depicted the names of Julius Ireri Kithenge and Simon Njeru Kithenge to have consented to the respondent herein to take the letters of administration which grant was later confirmed in respect to the estate herein. In the same breadth, the names of the beneficiaries in the confirmed grant were listed as Nancy Njura Njuki; Ephraim Ngari Njeru as beneficiaries thus leaving several questions unanswered as to whether the other dependants renounced their rights as beneficiaries in the estate herein. There was no indication as to the whereabouts of the other widow of the deceased and/or her children (applicants herein). The applicants being children of the other wife definitely ranks lower in priority than the respondent but nonetheless their consent was a legal requirement before the grant could be confirmed. It is my view that, the procedure of obtaining the grant by the respondent was defective for want of consent of persons of equal or lesser priority as required by the Law.

15. The general outlook of how the whole process was carried out coupled with the fact that, the respondent failed to list the applicants herein as beneficiaries of the estate, amounts to non-disclosure of material facts. Had she disclosed the existence of the other beneficiaries, the court would not have made the grant to her, as there was no consent by persons of equal or higher priority (children of the deceased). It is my considered view that the respondent deliberately left out the said beneficiaries so as to have the grant made in her name and to the disadvantage of the said beneficiaries.

16. In the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000, Mwita J. noted thus:“(13)Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”[See Antony Karukenya Njeru v Thomas M. Njeru [2014] eKLR in Meru Succession Cause No. 663 of 2011].

17. In view of the foregoing, the grant made to the respondent herein is hereby revoked. The estate to revert into the name of the deceased herein.

18. This being a succession cause, each party shall bear his/or her own costs.

19. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 15TH DAY OF JUNE, 2022. L. NJUGUNAJUDGE………………………………………for the Applicant…………………………………….for the Respondent