[2022] KEHC 10669 (KLR)

In re Estate of Laban Keigi Waweru (Deceased) (Succession Cause 333 of 1995) [2022] KEHC 10669 (KLR) (Family) (8 March 2022) (Ruling)

Neutral citation: [2022] KEHC 10669 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 333 of 1995

LA Achode, J

March 8, 2022

IN THE MATTER OF THE ESTATE OF LABAN KEIGI WAWERU (DECEASED)

Between

Jane Nyawira Boro

Applicant

and

Stephen Nganga Keigi

1st Respondent

John Kamau Keigi

2nd Respondent

Ruling

1. What is for determination is an application for revocation of grant dated 16th April, 2021 and brought under Section 76 of the Law of Succession Act and Rule 44(1) of the probate and Administration Rules. In it the Applicant seeks orders that;i.Spentii.The Respondents produce full and accurate accounts of administration of the deceased’s estate up to date.iii.The grant and certificate of confirmation of grant issued to Stephen Nganga Keigi and John Kamau Keigi on 27th November 1998 and rectified on 5th April 2017 be revoked.iv.Transfer and registration of the deceased’s properties including Kiambu Township Block 11/9, LR. No. 280/13 and LR. No. 280/15 and other resultants be revoked.v.All dealings in the deceased’s estate be revoked.vi.Cost be provided for.

2. The application is supported by an affidavit sworn on the same date in which she deposed that she is a daughter in-law to the deceased and that her husband died before the grant was confirmed. That the administrators/Respondents have never transferred the properties to the beneficiaries since the grant was first confirmed in 2012.

3. The Applicant averred that she has made several applications for transfer of her late husbands share of the deceased’s estate in vain. That she recently learnt of rectifications of the confirmed grants in which her deceased husband’s share was significantly diminished to one property where she currently resides without her knowledge.

4. The Applicant also contended that the Administrators left other beneficiaries of the deceased’s estate being daughters of the deceased; Jedidah Waithera Keigi, Ann Wamuca Keigi and Margaret Keigi. That the administrators illegally excluded rightful beneficiaries of the deceased’s estate and that they inequitably allocated the entire estate to themselves. She further contended that the Administrators have failed to render account of the deceased’s estate as duly required.

5. It was the Applicant’s case that if the grant made to Stephen Nganga Kiegi and John Kamau Kiegi is not revoked, the deceased’s estate will continue to be mismanaged, wasted, mishandled and disposed off to the detriment of other lawful beneficiaries.

6. In response the Respondents filed a replying affidavit sworn by the 2nd Respondent on both their behalf’s dated 23rd July 2021 in which he deposed that the Applicant was enjoined as a beneficiary of the deceased’s estate following the death of her husband Samuel Boro Keigi who died on 23rd April, 2010. That the Applicant immediately commenced litigation in the estate effectively occasioning delay in administration of the estate.

7. He averred that the Applicant filed Kiambu Magistrates Court Succession cause No. 477 of 2019, In the Estate of Samuel Boro Keigi whose orders amended the mode of distribution as per the certificate of grant dated 27th November 1998. He denied allegations of failing to distribute the estate to the rightful beneficiaries and stated that the delay was as a direct result of the Applicant’s interference and numerous applications in court.

8. The 2nd Respondent asserted that the deceased’s estate has been substantively administered/executed save for a few assets held in trust due to the passing of some beneficiaries. He contended that the Applicant’s reason for filing numerous applications was to delay the administration of the estate. being intent on avoiding distribution to her co-wife and step children to whom she is a trustee.

9. Jane Nyawira, the Applicant, filed a further affidavit sworn on 11th October 2021, in which she reiterated that her late husband’s share in the deceased’s estate has not been transferred to her and denied having a co-wife.

10. The application was disposed off by way of written submissions. The Applicant filed submissions dated 26th October 2021, in which she identified two issues for determination being; whether or not the Applicant is entitled to the relief sought and who should bear cost.

11. On the first issue the counsel for the Applicant relied on Section 76 of the Law of Succession Act and submitted that the Applicant did not give her consent and was not involved in the rectification of grant done in the years 2015 and 2017. That the Respondents deliberately left out some beneficiaries of the deceased’s estate being Jedida Waithera Keigi, Ann Wamuca Keigi and Margaret Keigi, who had not willingly renounced their claim to the estate. To this end, Counsel implored the court to revoke the grant issued to the Respondents. To buttress this assertion he relied on the cases of Justus Thiora Kiugu and 4 Others v. Joyce Nkatha Kiugu and Another (2015) eKLR, In the Matter of the Estate of Ezakel Mulanda Masai Eldoret P & A of 1992 and Succession Cause 36 of 2017, in the Matter of the Estate of Ibrahim Hassan Alias Sheikh Ibrahim Hassan (deceased).

12. The Respondents filed submissions dated 15th November 2021 in which they contended that the Applicant has not made any proposal on the mode of distribution of the estate should the grant be revoked. They stated that the rectification of grant was necessitated by the passing of one of the administrators.

13. The Respondents asserted that most of the deceased’s estate has already been administered and that it was administered with the consensus of all the administrators and beneficiaries. That the Applicant upon being admitted as beneficiary on her late husband’s, behalf began litigation against the estate actuating the delay in further administering the estate.

14. Upon careful consideration of the pleadings on record and the written submissions filed by respective Counsel on record, the court satisfied that the issues that emerge for determination revolve around the administration of the deceased’s estate and the rights of the Applicant in the estate. All other prayers will derive herefrom.

15. From the record before the court, certain facts are undisputed. The grant of letters of administration was first issued to Gichiru Kiigi, Stephen Nganga Keigi and Samuel Boro Keigi on 18th April, 1995. This grant was confirmed on 27th November, 1998 and the mode of distribution thereto was as follows;a.Kamothai/igi/t.153- David waweru Keigi wholeb.Kamothai/igi/t.17- Jackson Mburu Keigi wholec.Kamothai/thuta/334- David Waweru Keigi in equal shares- Francis Kimundiu Keigi- Alex Gicho Keigi- Jackson Mburu Keigid.Kamothai/igi/t.96- Stephen Ngaga Keigi In equal shares- Samuel Boro Keigi- John Kamau Keigie.Kiambu Township Block 11/9Gichiru Keigi, Stephen Nganga KeigiLR. NO. 280/13 and Samuel Boro Keigi as trusteesLR. NO. 280/15 for all beneficiaries of the estate.Gema Holdings- 5 SharesEast Africa Breweries- 14 SharesKpcu Ltd – 1514 Share, Kshs 6480 & One B Redeemable ShareGithunguri Mwanachi Co. Ltd. - 336 SharesKcc Ltd - 209 SharesKiberethi Estate Co Ltd – 75 SharesMboi- Kamiti Farmers -4 SharesGoodwork Ltdf.Thaiti-ini Development CO LTD - David Waweru Keigi In equal shares- Jackson Mburu Keigi

16. The grant was rectified upon the death of Samuel Boro Keigi. John Kamau Keigi replaced Samuel Boro Keigi as an administrator on 22nd February, 2012. The certificate of confirmation of grant was changed to reflect the developments and Jane Nyawira Boro was included as a beneficiary in place of Samuel Boro Keigi in February of 2012. The Applicant was also named as one of the trustees in the share of the estate to be held in trust for all the beneficiaries. With consent from the other beneficiaries apart from Jane Nyawira Boro, the Applicant was removed as a trustee in the share of the estate and John Kamau Keigi was instead added as a trustee on grounds that Jane Nyawira Boro was erroneously included instead of John Keigi.

17. Following, the summons for rectification, the grant was once again reviewed and the deceased’s estate was distributed in the same terms as the first certificate of confirmation of grant. The name of Jane Nyawira Boro was replaced with that of her late husband Samuel Boro Keigi in the certificate of confirmation of grant dated 10th February 2015.

18. A further rectification of grant was done on 5th April 2017, where LR Komothai/Thuita/334 was rectified to read LR Komothai/Thuita/350 and Samuel Boro Keigi was removed as a beneficiary of the deceased’s estate. The last rectification of the grant was done in November of 2020 following the death of one of the administrators’ Gichiiru Kiigi.

19. Administrators are required to render accounts of the estate of the deceased under Section 83 of the Law of Succession Act which provides for the duties of personal representatives as follows:(a)…………………………(g)within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.(h)to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;(i)to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.

20. The record before court does not contain any accounts filed by the administrators with respect to the deceased’s estate. According to the provisions and authorities above, it is imperative that the administrators herein render a full and accurate account of the dealings in the deceased’s property up to date.

21. This application is premised on Section 76 of the Law of Succession Act, Cap 160, Laws of Kenya which provides as follows;“Revocation or annulment of grant 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 order or allow; 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(e)that the grant has become useless and inoperative through subsequent circumstances.”

22. The basis for which the application for revocation is sought is that in bringing the application for grant of letters of administration, the Respondents failed to include 3 beneficiaries of the estate. Further that she was not privy to the rectification of grant done from 2012 onwards.

23. From the record, the 3 beneficiaries allegedly left out in administration of the estate have not shown any interest in prosecuting the matter before court since the grant was confirmed on 27. 11. 1998. They have not made any applications or protests before this or any other court nor have they sworn any affidavits in support of this application. The Applicant can thus not purport to represent the interests of persons who are not themselves interested in the estate.

24. In any case, the record before the court indicates that all the beneficiaries were included in the petition for grant of letters of administration and they did consent to the distribution of the deceased’s estate in terms of the original certificate of confirmation of grant.

25. As far as being left out in the rectification of grant of letters of administration, it is the Applicant’s case that she was not made privy to the rectification because the Respondents are intent on leaving her out of her late husbands rightful share in the deceased’s estate.

26. It is evident from the record that the last confirmation of grant, does not make any reference to the Applicant or her late husband. The law on beneficial interest is very clear to the extent that, the deceased’s estate devolves equally to all surviving beneficiaries. In essence, the Estate of the late Samuel Boro Keigi has beneficial interest in the deceased’s estate and cannot be disinherited by the administrators.

27. The above not withstanding, the Respondents contend that the estate has already been administered with the Applicants late husband having been accorded his fair share. The burden then, is on the Administrators to prove that the estate has actually been administered. Thus far, the Respondents have not discharged this duty.

28. Further, according to the original confirmation of grant, some properties forming part of the estate of the deceased were to be held in trust for all the beneficiaries of the estate. It is therefore not clear how the Respondents have discharged their duty towards the Applicant’s husband’s estate in the distribution. The beneficial interest should be accurately and fully accounted for.

29. In the instant case, the record shows that the Applicant was already admitted as a beneficiary in place of her husband’s share of the estate. She can thus not be unequivocally locked out without recourse.

30. Following the above analysis, it is my considered view that revocation of grant is not necessary at this juncture. This is an old matter spanning about 27 years and further delays in administration may not be in the interest of justice to the beneficiaries.

31. The object of the court is to uphold substantive justice. It is my view that substantive justice can only be achieved by ensuring that the share of the deceased beneficiary is protected and transmitted to his rightful heir(s). It is for this reason that, I order as follows:a.The Respondents/Administrators shall within 60 days, and in accordance with Section 83(e) Law of Succession Act, provide full and accurate accounts to the Applicant and the Court of the distribution of the deceased’s estate from the date of obtaining the grant of letters of administration up to date.b.Each party to bear own costs

DATED SIGNED AND DELIVERED IN VIRTUAL COURT THIS 8TH DAY OF MARCH, 2022. ..................................L.A. ACHODEHIGH COURT JUDGEIn the presence of .......... Advocate for the ApplicantIn the presence of .......... Advocate for the Respondents