[2022] KEHC 10009 (KLR)

In re Estate of Kiura Wari (Deceased) (Succession Cause 266 of 2007 & 264 of 2006 (Consolidated)) [2022] KEHC 10009 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10009 (KLR)

Republic of Kenya

In the High Court at Embu

Succession Cause 266 of 2007 & 264 of 2006 (Consolidated)

LM Njuguna, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF KIURA WARI

Between

Naomi Njoki Kiura

1st Applicant

Jane Gicuru Kiura

2nd Applicant

John Muriithi Kiura

3rd Applicant

and

Veronica Gicuku

1st Respondent

Francis Njagi Kiura

2nd Respondent

Ruling

1. The matter for determination before this court is summons for revocation or annulment of the grant dated February 29, 2016.

2. The application is based on the grounds on its face and supported by an affidavit sworn by the 1st applicant in which it is deponed that the applicants are children of the deceased herein and that the 1st respondent filed the succession cause without making any notice to the applicants; that the respondents filed the succession cause fraudulently and appointed themselves as the administrator and/or beneficiaries without the knowledge and/or consent of the applicants and they are in the process of disinheriting them.

3. It was the applicants’ case that the respondents never involved them in the proceedings prior to obtaining the grant herein, the subsequent confirmation and the distribution of the estate of the deceased and therefore it was outright that the same was fraudulent since the 1st respondent concealed from the court material facts that the applicants herein were beneficiaries of the estate of the deceased comprising of Parcel Number Ngandori/Kiriari/2276 and money in the Account numbers 100 - 234208 and KCB 105 – 01 - 1785 which facts had they been disclosed, the court would not have dispossessed the applicants of their right to inherit the property of the deceased.

4. It was their case that the 1st respondent never sought their consent during the filing of the succession cause and that the 1st respondent has already implemented the grant in a manner which is not acceptable to the applicants as the children of the deceased. Therefore, this court was urged to revoke or annul the amended grant issued on the May 13, 2015 and amended certificate of confirmed grant issued on July 20, 2015.

5. The 1st respondent swore an affidavit on July 9, 2019 wherein she deponed that she is one of the daughters of the deceased’s 1st wife and that the deceased herein had two wives (namely her mother, Esther Runji, and the mother of the applicants herein, Charity Ngai). She deponed that she previously applied for letters of administration in Embu PM Succession Cause No. 7 of1995 now High Court Succession Cause No. 264 of 2006 and that the applicants’ mother filed objection to her petition. Thereafter, the applicants’ mother Charity Ngai also filed another cause No.153 of 1996 in Embu SPM Magistrates Court for letters of administration intestate without the 1st respondent’s knowledge. That on November 18, 1998, the grant of letters issued to her and the applicants’ mother was confirmed and the applicants never protested then.

6. She further deponed that this application is an afterthought, as it was only instituted after the court made a ruling in her favour in the application for revocation of grant on March 11, 2015. She proceeded to state that the allegations are far from the truth in that when she filed Succession Cause Embu PM Succession No. 7of 1996, she disclosed in the PA. 5 the following people: Charity Ngai, Wilson Mbogo, Francis Njagi, John Muriithi, Veronica Gicuku, Jane Gicuku, Aloise Waiganjo, Regina Mukami and Naomi Njoki. It was her case that the applicants are aware that the 2nd respondent holds their share in place of their mother who is now deceased and they should claim their share from him without interfering with half share entitled to her and the children of the 1st house.In the end, she prayed that the application herein be dismissed with costs.

7. The court took viva voce evidence after which the parties herein were directed to file written submissions and wherein they complied. The applicants submitted that the grant was obtained fraudulently by concealment of material facts relevant to the said grant; that the grant was obtained by means of untrue allegations of facts essential in point of law to justify the grant. When the application came up for hearing before this court, the applicants testimony was to the effect that they were not satisfied with the mode of distribution because they felt left out yet they are children of the deceased. It was further submitted that the 1st respondent was an impostor and not entitled to any share of the estate of the deceased. That the applicants were left out in the process of distribution of their deceased father’s estate and therefore, the grant herein should be revoked.

8. The 1st respondent submitted that this matter was first instituted in Court on January 11, 1995 and wherein the petitioner was the 1st respondent as the daughter of the 1st wife (Esther Runji). That in the P & A 5, the 1st respondent had declared the following people as surviving the deceased father. [Charity Ngari as widow; Wilson Mbogo; Francis Njagi; Veronica Gicuku; Jane Gicuku; Aloise Waiganjo; Regina Mukami and Naomi Njoki]. That petition was served upon Charity Ngai who proceeded to file a protest sworn on February 22, 1995 which prompted the court to issue grant of letters to both the 1st respondent and Charity Ngai.

9. It was the respondent’s case that on November 18, 1998, she proceeded to transmit the estate comprised of LR No. Ngandori/Kiriari/2276 to her name and her step mother’s name as co-administrator awaiting the process of subdivision. That the applicants are untruthful as they attended court only that the magistrate at the time of confirmation of the grant mistakenly recorded their names as Naomi Gicuku instead of Naomi Njoki while that of Jane Gicuku as Jane Njoki. That the 1st applicant confirmed sharing of the money in the bank and never sought the revocation of the grant, yet, she alleges that she was left out. Further that, the 3rd applicant was aware of the proceedings that took place in summons for revocation of grant by the 1st respondent dated November 7, 2013 where he was listed as the 3rd respondent. That the 2nd respondent herein filed an affidavit on the same date and at paragraph 2, stated that he had authority to swear the affidavit on behalf of the 3rd applicant herein and further, he was equally in court when the ruling was delivered on March 11, 2015.

10. It was submitted that the best way the 1st applicant could have proceeded was by way of preferring an appeal and not filing for a revocation of the grant. It was submitted that P & A. 5 filed in PM Succession No. 7 of 1995 disclosed all the beneficiaries of the deceased and that all of them were present during the confirmation save for Francis Njagi Kiura. That the 1st respondent is the daughter of the 1st wife while the mother of the applicants was the 2nd wife and no material facts were concealed and that the distribution of the estate was done in equal half representing the families herein. It was submitted that the 1st respondent holds in trust for herself and in trust for the children of the 1st family while the 2nd respondent is holding their share of half of the estate which was held in trust for themselves by their mother before she died.

11. I have considered the application, the replying affidavit, viva voce evidence on record and the submissions by the parties herein. The applicants’ case is that the 1st administrator failed to include them as beneficiaries in the distribution of the estate of the deceased herein notwithstanding the fact that they are children of the deceased hence rightful beneficiaries. In my view, the only issue which this court ought to determine is whether the grant herein ought to be revoked.

12. The circumstances under which a grant can be revoked are provided for under section 76 (a) - (e) of the Law of Succession Act and include;a)Where the proceedings to obtain the grant were defective in substance;b)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;c)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;d)Where the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate; oriii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; ore)Where the grant has become useless and inoperative through subsequent circumstances.

13. Section 76 provides for revocation of grant. From the analysis above, it appears that the relevant provision is section 76(a) (b) and (c) as the application before the trial court relates to the obtaining of the grant. Under the said provisions, 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 proceedings to obtain the grant were defective in substance; that the grant was obtained fraudulently by making of a false statement or by concealment from the court of something material to the case; or that the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant not withstanding that the allegation was made in ignorance or inadvertently. These grounds ought to be proved with evidence as the power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. [See Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No.158 of 2000]. Even when revocation is by the court upon 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].

14. It is clear therefore, that, the grounds upon which a grant may be revoked or annulled are statutory and it is incumbent upon any party making an application for revocation or annulment of a grant to demonstrate the existence of any, some or all the above grounds. The applicants had the duty to demonstrate the ground(s) which they relied on in challenging the grant.

15. The grounds in support of the applicants’ application is that the succession cause was done without involving the applicants who are children of the deceased and further that, they did not sign any document in the succession cause but only learnt about the instant cause when the same had already been finalized. That, the respondents divided the estate into two portions whereupon each portion is registered in their personal names thus disinheriting the applicants. These averments were strongly opposed by the 1st respondent while the 2nd respondent is on record as not opposing the application. It was submitted by the 1st respondent that at the filing of the succession cause, all parties were involved in the proceedings herein.

16. Rule 7 of the Probate and Administration Rules1980 provides that application for grant of representation in relation to an estate of a deceased person to whose estate no grant other than the one under section 49 or a limited grant under section 67 of the Act has been made, the application shall be by petition supported by an affidavit. The said affidavit must contain amongst other details, the names, addresses, marital state and description of all surviving spouses and children of the deceased, or, where the deceased left no surviving spouse or child, like particulars of such person or persons who would inherit in accordance with section 39(1) of the Act [Rule 17(e) (i)].

17. Rule 26 provides that 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. Further that, in 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 so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.

18. In the instant case, the applicants have alleged that the acquisition of the grant herein was obtained fraudulently by making of a false statement or by the concealment from the court of something material to the case. It is trite that whoever asserts a fact is under an obligation to prove it in order to succeed. The standard of proof in civil cases (the degree of certainty with which a fact must be proved to satisfy the court of the fact) is on a balance of probabilities. Therefore, the applicant’s burden remains even if the respondent fails to file any defence in response [See Sections 107 and 108 of the Evidence Act, equally Miller v Minister of Pensions[1947] 2 All ER 372, Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR].

19. Where fraud is pleaded, the burden and standard of proof was well explained by the court of Appeal in Kuria Kiarie & 2 Others v Sammy Magera[2018] eKLR held thus :25. The law is clear and we take it from the case of Vijay Morjaria v Nansigh Madhuisngh Darbar & Another [2000] where Tunoi JA (as he then was) stated as follows;It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.’’ [Emphasis added].26. As regards the standard of proof, this court in the case of Kinyanjui Kamau v George Kamau [2015] eKLR expressed itself as follows:It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo (2008) 1 KLR (G & F) 742 wherein the court stated that, ‘’…..we start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases.’’….in cases where fraud is alleged, it is not enough to simply infer fraud from the facts.

20. As such, the allegations of fraud in my view are not genuine since nothing has been presented before this court to support such an allegation. Muchemi J in a ruling dated March 11, 2015 determined that:‘’…… the claim that the respondents do not know the applicant (1st respondent herein) and her siblings and denial that they are children of the deceased and therefore not rightful heirs of the deceased’s estate cannot be true given the evidence and the circumstances…. the respondent had named all the respondents in succession cause no 7 of 1995 as beneficiaries which is a demonstration of good faith….’If they (applicants) were not aware of the 1st house of the deceased, then there was no need of obtaining the grant secretly while they were well aware that another cause existed. The applicant (1st respondent herein) had named all the respondents (applicants herein) in succession cause No. 7 of 1995 as beneficiaries which is a demonstration of good faith towards members of the 2nd house of the deceased ….The respondents claim that the people who appeared in court and named as the 1st and 3rd respondents were imposters. This cannot be true because it is the magistrate who received the names of the people present and also noted those absent …..’’

21. In the same ruling, the court noted that ‘the family of the 2nd house had proceeded to distribute the proceeds of the deceased’s bank account equally which account the 1st respondent was not even aware of, a fact that the applicant equally confirmed during the hearing that the deceased died on August 31, 1993 and that he also left money in the account but instead allowed their mother (Charity Ngai) to use the same. Therefore, in my considered view, it cannot be true that the applicants were not aware of the proceedings nor have they been dispossessed of the right to inherit the property of the deceased, to the contrary, they are the ones who are determined to disinherit the children of the 1st house.

22. The process of confirmation of grant is always after the grant has been made. What Section 76 provides are the conditions or circumstances under which a grant can be revoked. Allegations of fraudulent process ought to be in relation to obtaining the grant and not the process of confirmation of the same. [See in re Estate of Prisca Ong’ayo Nande (Deceased) [2020] eKLR].

23. The applicants further alleged that the grant should be revoked since the 1st respondent has already implemented the grant in a manner which is not acceptable while the 1st respondent on the other hand has submitted that, the estate herein was divided into two where the 1st respondent represents the 1st house while Charity Ngai (deceased) represented herself and her family. That the applicants and the 2nd respondent have their half of the estate held in trust for themselves by their mother and all they need to do is agree on the mode of distribution amongst themselves.

24. In the end, it is my considered view that the applicants did not tender any evidence to convince this court that the grant herein deserve to be revoked and further, in the circumstances herein, I am not convinced that revoking the grant is the best option. Further, the same had been previously ably dealt with by a court of concurrent jurisdiction to this. [See Pangea Holdings LLC & another v Hacienda Development Ltd & 2 others [2020] eKLR; CK Bett Traders Limited & 2 Others v Kennedy Mwangi & Another[2021] eKLR].

25. Having perused the evidence presented before this court in its entirety, I find that the application herein lacks merit and is an abuse of the court’s process. In view of the foregoing, it is hereby dismissed with costs to the 1st respondent.

26. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 12TH DAY OF MAY, 2022. L. NJUGUNAJUDGE……………………………………………for the Applicants………………………………………….for the Respondents