[2017] KEHC 9794 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISON

SUCCESSION CAUSE NO. 606 OF 2010

IN THE MATTER OF THE ESTATE OF K K ALIAS J K K (DECEASED)

J M K....................................1ST APPLICANT

W N K..................................2ND APPLICANT

VERSUS

F N K.....................................RESPONDENT

RULING

PLEADINGS

The deceased, K K Alias J K K died on 15th April, 2001 intestate.

He was survived by the following beneficiaries:

i.F N K (Son)

ii.J K (Son)

iii.E K(Son)

iv.M W (Daughter)

v.G N (Daughter)

His estate comprised of one property Plot Kiambu/Gatuanyaga/[particulars withheld]. F N K filed for Grant of Letters of Administration vide Kiambu Senior Principal Magistrate Succession Cause No. 24 of 2009 and the same was issued on 9th March, 2009. He later filed summons for confirmation of the grant on 16th September, 2009 which was confirmed and the mode of distribution of the suit property Plot Kiambu/Gatuanyaga/[particulars withheld] was as follows;

1. Kiambu/Gatuanyaga/[particulars withheld]be shared by:-

a.F N K(2 acres)

b.J K (1 acre)

c.E K (1 acre)

The letter for summons of confirmation of grant was only signed by the only one beneficiary G N but the other beneficiaries J K, E K and M W did not sign the letter.

On 29th March, 2010 the Applicant filed for revocation of confirmed grant and summons of the grant issued and alleged that;

1. The grant was obtained fraudulently by the concealments from the Court of some material facts that:

a)They were beneficiaries of the deceased by virtue of being daughter-in-law and granddaughters of the deceased.

b)The administrator failed to serve them with citation.

c)The Administrator and beneficiaries distributed

d)The only asset of the estate of the deceased land parcel Kiambu/Gatuanyaga/[particulars withheld]in total disregard of other beneficiaries.

2. It was obtained by means of untrue allegation of facts counted in point of law to justify the grant.

3. It was confirmed on 23rd October, 2009 but the estate of the deceased’s land parcel Kiambu/Gatuanyaga/[particulars withheld] is still registered in the name of the deceased.

APPLICANT’S CASE

The Applicant was the legally married by her late husband G K K on May 1971 as shown by the Marriage Certificate produced during the hearing as exhibit 1. They were Police Officers stationed at [particulars withheld]Division. They were blessed with 6 children namely;

1)W N K

2)J K K

3)M W K

4)T M K

5)B M K ( deceased)

6)A N. K

7)R N K ( deceased)

who are adults and their birth certificates produced as exhibits 2 during the proceedings. In 1997, the G K (deceased) and her husband and son to the deceased remained in Nairobi and she relocated to Kirinyaga on transfer. They were briefly separated with her husband after he married a second wife but they never officially divorced. Later on her husband died on 1999.

Later, she learnt that her late husband was sick and together with her children visited him in hospital in Kilimambogo in Thika. Later, he died in 1999. The Applicant attended her husband's funeral with their children. She produced photographs Exhibit 1, 2 & 3 showing their presence at the funeral.

In 2001, the Applicant learnt of her father in law's death and she attended the funeral. After that the Respondent threatened her and summoned her to the headman and Chief. She reported the matter to OCPD Kiambu and later obtained services of a lawyer to file restriction on suit property Kiambu/Gatuanyaga/[particulars withheld].

The Applicant filed Succession Cause 411 of 2001 in Thika Law Courts for her late husband's estate and obtained a grant of letters of administration which she produced as Exhibit 6 in Court. She is administrator of her late husband's estate.

The Respondent, F N K and her late husband were the only children of the late K K alias J K K. The estate of their father comprised of a parcel of land situated in Thika-Kiambu County L.R. NO. KIAMBU/GATUANYAGA/[particulars withheld]. She said that her husband and children resided in the same suit parcel of land in Thika and the husband had built for her a wooden house to reside in that land.

She contends that the Respondent filed a Succession Cause No. 24 of 2010 Kiambu Law Court to administer the estate of his late father and he did not include her and her children as beneficiaries where the Respondent was issued with grant fraudulently through non-disclosure.

The Applicant stated that there were entitled to share of the suit property Kiambu/Gautanyaga/[particulars withheld]. Subsequently they could not proceed to administer her husband’s estate due to the Respondent’s hostility to her and children by denying her entry and access to her husband’s estate. It’s her contention that they are two grants in this matter one issued to her at Thika Court and the other one issued to the Respondent at Kiambu Law Court.

The Applicant instructed her advocate to file the present matter so as to revoke the grant issued in Succession Cause 24 of 2009. She stated that the grant was obtained through material non disclosure that she and her children are beneficiaries of the deceased's estate as they the beneficiaries of the deceased's son G K (deceased) estate. The Applicant seeks that prayer that Land Parcel measuring 1. 71 Ha be divided in two equal shares.

In her Written Submissions dated 14th June, 2017 she stated that the Respondent lied to the Court by concealing from it that he had a brother by name G K K who had predeceased his father leaving behind a widow and children.

She further urged that the Respondent’s submissions is on the issue of distribution of his deceased father’s estate which is not what is before the honourable Court again the Respondent trying to seek reliance of a statement from P W (the deceased’s other wife) which is unprocedural.

She also averred the Respondent states that his late brother had married P W after they allegedly separated with her where she claims that no one by that name has ever come forward to claim a share of the deceased’s estate.

She deponed that the Respondent kept referring to divorce proceedings and does not prove that those proceedings ended in divorce. In her evidence she testified that she abandoned the divorce cause after reconciling with her husband hence did not proceed to issue of orders of divorce.

Her prayer is that the Honourable Court to revoke the subject grant and restore the estate of the deceased in the event there is unlawful interference made thereto by the Respondent and once the grant is revoked, an application for grant of letters of administration to the deceased’s estate should be with the involvement of all the beneficiaries and then the issue of the distribution of the estate can be properly canvassed in Court by the concerned beneficiaries.

THE RESPONDENT’S CASE

In response to the Application of Applicants dated 25th August, 2015 and Affidavit in Support, the Respondent filed an Affidavit sworn on 7th September, 2015 and Replying Affidavit on 11th January, 2011 respectively.

It was his deposition that he and his late brother were the only children of his late parents, K K alias J K K and M W K. His father had a second wife the late E N K who was not blessed with any issues.

He asserted that after the death of his father, mother, step mother and brother, he took out Letters of Administration Intestate Succession Cause No. 24 of 2009 at the Chief Magistrate Court’s at Kiambu and was issued with the grant on the 9th March, 2009 and confirmed on 23rd October, 2009.

The transfer process was commenced as per the confirmed certificate of grant and he was issued with a new title KIAMBU/GATUANYAGA/[particulars withheld] where he occupies as the registered proprietor from the mother title known as KIAMBU/GATUANYAGA [particulars withheld marked “FNK” 6 and copies of title deed and certificate of official search of the suit property. He further stated that he has been in occupation of the land for the past forty years and he has raised his family in the property which is their home.

The Respondent averred that the 1st Applicant was married to his late brother G K K who was working as a Police Office and they resided at South B Police Deport. Further, during their marriage, they were blessed with 6 children.

In the year 1973, the Respondent was informed by his late brother that his wife J M 1st Applicant had separated from him and left to Kirinyaga with their six (6) children. Subsequently the 1st Applicant filed for Divorce Cause No. 126 of 1994 where she served his late brother with the Petition for divorce.

The Respondent asserted that his late brother moved to their ancestral home KIAMBU/GATUANYAGA [particulars withheld] after they separated with his wife where he lived till his death.

It is his further assertion that the Applicants with the rest of their siblings have neither lived at his deceased father’s property KIAMBU/GATUANYAGA [particulars withheld] nor constructed any house/home as in the said property as alleged and the Applicants reside at Gatuanyaga in Thika District.

He affirmed that his late brother G K K sold his portion measuring one (1) acre to another party rendering him with no claim in their deceased father’s estate. He stated that the sale agreement was transacted with the consent and blessings of their deceased father who wrote the agreement and facilitated the transfer of the land for and on behalf of his deceased brother.

The Sale Agreement dated 9th July, 1997 was signed between the Respondent’s deceased father and the vendor.

The Respondent contended that the Applicant’s servants and/or agents have trespassed, interfered with dealing of the ownership of his property known as KIAMBU/GATUANYAGA/[particulars withheld].

In response to the Applicant’s supporting affidavit, he states that he is the absolute proprietor of the property he is occupying and has a right to use the property as he wishes. He also stated that there is no evidence has been produced to confirm the allegations of sale and construction.

In his submissions he stated that the Applicant was married to his late brother and she was not entitled to a share of land parcel Kiambu/Gatuanyaga/[particulars witheheld] as his late brother was given his share during the life time of his late father as confirmed before the Honourable Court per the witness statement dated 23rd February, 2016.

The Respondent stated that the Applicant married to his late brother and they separated as per evidence the Applicant gave in Court as well as the averment contained in her Divorce Cause No. 126 of 1994 and confirmed that her late husband married another wife P W.

It is his further submissions that the Applicant inherited her late husband’s properties situated at Embakasi, Kihiu Mwiri and Mwea parcels of land and omitted to indicate Kiime/Kiangai/[particulars withheld] in her Succession Cause No. 411/2001 where she resides hence are not entitled to any share in the estate of the deceased J K.

The Respondent’s disposition is that his late brother approached his late father, step mother and family members to be given his share so that he could expand his business. Upon discussion with family members and his wife P W, his late father asked him to look for purchaser. The parcel of land was initially Kiambu/Gatuanyaga/[particulars withheld] which was split into two pieces that is Kiambu/Gatuanyaga/and Kiambu/Gatuanyaga/[particulars withheld] and it was purchased by Julius Kariuki who is also deceased.

The Respondent prayer is that the summons for revocation of grant issued on 29th March, 2010 is misconceived, frivolous, has no legal basis at all and is brought to the Honourable Court without good faith and therefore should be dismissed with costs.

HEARING

J M K (PW1) was heard orally in Court on 15th December, 2015 where she objected to the grant issued to Respondent since he did not include the children of his brother. She also testified that when they got the land, the Respondent objected to them accessing using or living on the land. She asked the Court to revoke the grant issued in Kiambu Law Courts so that they are included as beneficiaries of the deceased's estate through his late son's beneficial interest.

PWII W N K testified that they are unable to access their home and they found that they uncle demolished their home. He threatened them with pangas and when the matter was reported to the Area Chief, he told them to give the Respondent time to cool down.

She reiterated that they had resided at Gatuanyaga in 1976, 1977 and 1978. Their parents' built a 3 bedroom wooden house and since the same was destroyed they did not have any other family home.

DW 1 testified in Court on 7th November, 2016 that his brother had no share in the deceased's estate, since he sold his parcel of land Plot Kiambu/Gatuanyaga [particulars withheld] as Kiambu/Gatuanyaga [particulars withheld] to one J K G in 1997 for Kshs135,000/=. The said purchaser is deceased as well as his wife.

ISSUE

After considering the evidence on record the matter for determination is whether the grant issued in Succession Cause 24 of 2009 Kiambu Law Courtson 9th March, 2009 and confirmed on 23rd October, 2009 was a valid grant or not under Section 76 of Law of Succession Act Cap 160.

DETERMINATION

Section 76 of the Law of Succession Act provides for the alteration and revocation of Grants. It states 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 any interested party or of its own motion-

(a)That the proceedings to obtain the grant were defective in substance;

(b)That 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)That 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)That 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 has ordered or allowed; or

(ii)To proceed diligently with the administration of the estate; or

(iii)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; or

(iv)That the grant has become useless and inoperative through subsequent circumstances.

From the evidence on record and testimony by PW1 the Applicant was married to G K (deceased) son of K K (deceased) and they had 6 children. This fact was not contested and /or controverted by any other evidence by the Respondent. He did not challenge the production of marriage certificate and birth certificates either as forged or containing false evidence. He produced proceedings of Divorce Cause 126 of 1994 between the Applicant and her late husband but this Court finds these proceedings inconclusive as to the dissolution of their marriage in the absence of decree absolute. Secondly, even if the Applicant and her late husband divorced which has not been proved, there is no evidence to prove that the children of the marriage were not the deceased’s and in the absence of the controversy evidence on record they are beneficiaries of the deceased's estate as children of the deceased's late son G K.

The evidence on record confirms the Applicant and her children as beneficiaries of the deceased's estate by virtue of the beneficial share of G K K share in the deceased's estate. The Applicant and Children may also pursue their beneficial interest as dependants under Section 29 of Law of Succession Act Cap 160.

Section 38 of Law of Succession Act provides that;-

Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.

It is not disputed that the deceased who died on 15th April, 2001 was survived by two sons being the Applicant’s husband (deceased) and the Respondent. It is also not disputed that in Respondent’s in his letters of petition did not include the Applicant’s deceased name as widow of the deceased's brother with a share of the deceased's estate.

The beneficiaries who consented to petition of Letters of Administration did not include the Applicant and her children.

In the case ofALBERT IMBUGA KISIGWA V RECHO KAVAI KISIGWA, SUCCESSION CAUSE NO.158 OF 2000,Mwita J. in a decision rendered on 15th November, 2016, 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 a discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invokesection 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.

The Applicant and children have a legitimate and legal claim over the deceased's estate. They ought to have been included and their consents obtained in the Succession proceedings in Kiambu Law Courts. The grant was obtained fraudulently and by concealment of material facts, that the Applicant and children of the deceased’s son were also beneficiaries of the deceased’s estate. Since the applicant and children were excluded, it vitiates the validity of the grant and confirmed grant.

It is when they are included, that the Trial court shall canvass the share due to the Deceased's son G K K (deceased) in the deceased's estate; if and when the deceased’s son sold his share of the land and how and when he did so as the Sale Agreement that issued on 9th July, 1997 by the Respondent was an agreement between his deceased father and the vendor and not by the deceased's son.

DISPOSITION

1. That the grant of Letters of Administration issued to F N K, by the Senior Principal Magistrates Court Kiambu in Succession Cause No.24 of 2009 on 9th March, 2009 and confirmed on the 16th September, 2009 in the estate of the late K K Alias J K K be and is hereby revoked under Section 76 (b) & (c) of Law of Succession Act Cap 160.

2. That the Applicant and children of the deceased's son G K K (deceased) son of K K (deceased) be included as beneficiaries of the estate of the deceased herein.

3. The the Respondent as administrator of the deceased's estate to pursue distribution of the estate of the deceased including beneficial share to the Applicant and children and file confirmation of grant.

4. That the Applicant is at liberty if not agreed to file protest to be heard and determined by the Court.

5. Each party to bear own costs.

It is hereby ordered.

DELIVERED SIGNED & DATED IN OPEN COURT ON 3RD NOVEMBER, 2017.

M.W. MUIGAI

JUDGE

IN THE PRESENCE OF:

Ms. Mwaniki holding brief Mwangi Gachichio for the Applicant.

Mr. Omwenga for the Respondent.

Mr. Omwenga: I have intention to seek leave to appeal the decision.

Court: The leave to appeal is granted.